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Trespass in the Non-Spam Cases:

eBay v. Bidders’ EdgeBy Richard Warner

Tutorial

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Trespass to Chattels in Non-Spam Cases

Trespass to chattels on the Internet first appeared in the casesinvolving spam email, but it was soon invoked in situationsthat did not involve spam email.

eBay v. Bidder’s Edge is the one of the leading cases.

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Background

The following background is necessary to understand eBay v.

Bidders’ Edge.

eBay is an auction web site on which sellers list items for sale,and prospective buyers post bids and track the status of auctions.

There are hundreds of auction sites, although eBay is by farthe largest. The large number of sites creates a dilemma forbuyers. Should a buyer search one site, or a few sites, andsettle for the best combination of price and quality the limitedsearch reveals? Or, is a broader search worth the extra effort?

The business plan behind the Bidder’s Edge auction site was tosolve this dilemma.

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The Bidders’ Edge Business Plan

Bidder’s Edge allowed a buyer to perform a single search on

its site, where that search yields a list of all relevant items forsale on over one hundred other auction sites.

Bidder’s Edge accomplished this feat through software robotsthat automatically searched the other auction web sites and

returned information to Bidders’ Edge.

eBay was among the sites Bidders’ Edge searched; indeed,eBay has so much for sale compared to all the other auctionsites that Bidders’ Edge would not attract buyers if it did not

have the information from eBay.

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Intentional Use of Personal Property

In order to search the eBay site and extract information from

it, Bidders’ Edge sent robot search programs to the eBaysite. The programs entered eBay’s computers, searchedthem, and returned information to Bidders’ Edge.

Therefore, Bidders’ Edge intentionally used eBay’s computers.

(a) Yes

(b) No

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Correct!

You commit trespass to chattels if you

1) intentionally use someone’s personal property

2) without authorization and

3) thereby impair the value of the property, or harma legally protected interest.

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Trespass if . . .

Bidders’ Edge committed trespass to chattels if its intentional

use of eBay’s computers was unauthorized, and eitherimpaired the value of the computers, or harmed a legallyprotected interest.

(a) True

(b) False

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Correct!

Bidders’ Edge intentionally sent the search programs

to eBay’s computers, and the programs used the

computers to send information back to Bidders’

Edge.

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Correct!

The fact pattern is similar to CompuServe v. Cyber

Promotions. Both courts doubt that consent to

access was given in the first place, and both courts

note that, even if it was, it was explicitly revoked.

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Unauthorized?

eBay’s web site is a publicly accessible web site. In connecting such

a web site to the Internet, eBay gave consent to access by thegeneral public to its web site.

The court notes, however, that “eBay does not generally permit thetype of automated access made by [Bidders’ Edge]. In fact, eBayexplicitly notifies automated visitors that their access is not

permitted.” In addition, the court notes that “eBay repeatedly andexplicitly notified [Bidders’ Edge] that its use of eBay's computersystem was unauthorized.”

Bidders’ Edge continued to use eBay’s computer system even afterbeing explicitly notified that its use was not authorized.

(a) Bidders’ Edge’s use of eBay computer system was not authorized,at least not after eBay’s explicit denial of authorization.

(b) Bidders’ Edge’s use of eBay computer system was notauthorized.

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Impaired Value or Harm to a Legally Protected Interest

Bidders’ Edge’s intentional, unauthorizeduse of eBay’s computers constitutestrespass to chattels if the use impairs thevalue of the computers, or harms a legally

protected interest.

(a) Yes

(b) No

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Correct!

Trespass to chattels consists in

1) intentionally using someone’s personal property


3) thereby impairing the value of the property, or

harming a legally protected interest.

Bidders’ Edge fulfills (1) and (2).

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No Harm To A Legally Protected Interest

Did Bidders’ Edge’s use of eBay’s computers harm a

legally protected interest? It is difficult to see how. It isunlikely, for example, that eBay lost money as a resultof Bidders’ Edge’s use; in fact, it probably mademoney. Indeed, eBay had previously granted Bidders’ Edge a license to search eBay and extract information,

and it had also granted such licenses to other auctionsites. eBay would not have entered into the licenseagreements unless they were financially advantageous.

When the license agreement between eBay and Bidders’

Edge terminated (the license was only valid for aspecified time), the parties began to negotiate a renewalof the license. eBay sued Bidders’ Edge only after thenegotiations broke down.

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Repeated, Unpreventable Use

Assuming there is no harm to a legally protected interest, Bidders’

Edge’s intentional, unauthorized use of eBay’s computers is atrespass only if it impairs the value of the computers. Does it?

To answer, consider first the following background. After thebreakdown in the negotiations, eBay notified Bidders’ Edge that itwas no longer authorized to send automated search programs to

eBay’s site. Bidders’ Edge continued to do so. It hardly had any realchoice. Without the information about eBay on the Bidders’ Edgesite, Bidders’ Edge would not attract many users. eBay attempted touse technological means to block access by Bidders’ Edge’s robotsearch programs, but Bidders’ Edge easily circumvented thetechnological barriers. Thus: Bidders’ Edge intentionally and without

authorization used eBay’s computers in a repeated, unpreventableway.

Does such a repeated, unpreventable use impair the value of eBay’scomputers?

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The Court’s Holding

In CompuServe v. Cyber Promotions, the court emphasized

that Cyber Promotion’s massive amount of email imposed asignificant burden on CompuServe’s computers. CompareeBay : Bidders’ Edge used only a negligible part of eBay’scomputer capacity. Indeed, it was an amount eBay had beenwilling to license Bidders’ Edge to use in the

past. Nonetheless, the eBay court fount that Bidders’ Edgetrespassed. The court argued that

it is undisputed that eBay's server and its capacity are personalproperty, and that [Bidders’ Edge’s] searches use a portion of this property. Even if . . . its searches use only a small amount of

eBay's computer system capacity, [Bidders’ Edge’s] hasnonetheless deprived eBay of the ability to use that portion of itspersonal property for its own purposes. The law recognizes nosuch right to use another's personal property.

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Impairment of Value?

As noted earlier, Bidders’ Edge’s intentional, unauthorized use of

eBay’s computers is a trespass only if it impairs the value of thecomputers. Against this background, consider again the court’sargument that Bidders’ Edge trespassed:

it is undisputed that eBay's server and its capacity are personalproperty, and that [Bidders’ Edge’s] searches use a portion of this

property. Even if . . . its searches use only a small amount of eBay's computer system capacity, [Bidders’ Edge’s] hasnonetheless deprived eBay of the ability to use that portion of itspersonal property for its own purposes. The law recognizes nosuch right to use another's personal property.

This is to hold that Bidders’ Edge’s use impairs the value of eBay’s computers.

(a) Yes

(b) No

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Correct!

Bidders’ Edge’s use is a trespass only if it impairs

the value of the computers. When the court notes

that Bidders’ Edge has “deprived eBay of the ability

to use that portion of its personal property [the

portion Bidders’ Edge uses] for its own purposes,” it

is recognizing that the deprivation impairs the value

of the property.

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The Role of Self-Help

Although the court does not mention it in the passage quoted on

the previous page, the fact that Bidders’ Edge’s use was repeated and unpreventable is essential. To see why, consider thisanalogy.

Suppose we share a desk. I leave my notebook computer on thedesk open and running. I tell you not to use it. You nonetheless

use it to conduct one Google search, which does not physicallyharm the computer in any way, or harm any legally protectedinterest. When I discover your use, I never leave my computerunattended unless I shut it down thereby preventing you fromusing it since you do not know the startup password.

Did conducting the Google search make you liable for trespass?

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Self-Help and Liability

According to the Restatement (Second) of Torts, your Google search

does not make you liable for trespass to chattels. The reason is thatself-help is adequate to protect my property. (The CompuServecourt emphasizes this point, and discusses the rationale).

Self-help can taken many forms depending on the property and thesituation; the idea is always that the property owner is capable of preventing trespasses by his or her own efforts.

Suppose that, after eBay had notified Bidders’ Edge it was notauthorized to send search programs to it, Bidders’ Edge continued tosend the programs, but suppose that, after one or two got through,eBay was easily able to permanently block the rest.

In such a case, it would be unlikely that the court would have founda trespass.

(a) True

(b) False

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Correct!

The situation would be one in which self-help was

sufficient to prevent the trespass.

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A Key Difference

There is one key difference between the eBay situation and

the example of the computer Google search: Bidders’ Edge’ssearches of eBay’s computers were repeated andunpreventable.

(a) True

(b) False

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Correct!

In the eBay situation, self-help is not possible. eBay

cannot prevent the trespass, so it makes sense to

provide legal protection by finding Bidders’ Edge

liable for trespass.

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Breadth of the Holding

eBay is plausibly read as holding that intentional, unauthorizedaccess to a computer which is repeated and unpreventable impairsthe value of the computer and hence is a trespass.

Note the difference with CompuServe v. Cyber Promotions. TheCompuServe court emphasized that Cyber Promotions imposed asignificant burden on the capacity of CompuServe’s computers. eBayfinds a trespass without such a burden. Recall the key passage:

Even if . . . [Bidders’ Edge’s] searches use only a small amount of eBay's computer system capacity , [Bidders’ Edge’s] has nonethelessdeprived eBay of the ability to use that portion of its personalproperty for its own purposes. The law recognizes no such right touse another's personal property.

This is a very broad holding. Any access to a computer uses some of

its computing capacity and hence deprives the owner of “the abilityto use that portion of its personal property for its ownpurposes.” Thus, under eBay , any intentional, unauthorized accessto a computer which is repeated and unpreventable impairs the valueof the computer and hence is a trespass.

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You have completed this tutorial.

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Incorrect.

Bidders’ Edge intentionally sent the search programs

to eBay’s computers, and the programs used the

computers to send information back to Bidders’ Edge.

back

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Incorrect.

You commit trespass to chattels if you

1) intentionally use someone’s personal property


3) thereby impair the value of the property, orharm a legally protected interest.

back

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Incorrect.

The fact pattern is similar to CompuServe v. Cyber

Promotions. Both courts doubt that consent to

access was given in the first place, and both courtsnote that, even if it was, it was explicitly revoked.

back

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Incorrect.

Trespass to chattels consists in

1) intentionally using someone’s personal property


3) thereby impairing the value of the property, or

harming a legally protected interest.

Bidders’ Edge fulfills (1) and (2).

back

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Incorrect.

Bidders’ Edge’s use is a trespass only if it impairs

the value of the computers. When the court notes

that Bidders’ Edge has “deprived eBay of the abilityto use that portion of its personal property [the

portion Bidders’ Edge uses] for its own purposes,” it

is recognizing that the deprivation impairs the value

of the property.

back

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Incorrect.

The situation would be one in which self-help was

sufficient to prevent the trespass.

back

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Incorrect.

In the eBay situation, self-help is not possible. eBay

cannot prevent the trespass, so it makes sense to

provide legal protection by finding Bidders’ Edgeliable for trespass.

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