Lements of Crime and Intentional Tort -U1-IP

Your sister has come up with what she thinks is a brilliant idea for a home-based business a website which helps lonely people find their perfect match by comparing different singles website services. She intends to link to some of the top dating sites, several alternative ones, and a few regional ones. While she explains her idea to you, you stop her in mid-sentence and say, Whoa there, remember Bidders Edge?She has no idea what youre talking about, so you give her the following article.

Trampling through the Websites When is Linkingan Illegal Trespass?
LEAD STORY-DATELINE: The Recorder, 5/26/00.


Linkingis a common practice on the Internet. One Web page often establishes a Linkto another web page or web site. This practice normally benefits the linked web site, as it increases the number of individuals that might access and use the site. Bidders Edge, Inc. was a company that helped consumers comparison-shop for the lowest price on auction web sites by posting auction items on its web site. Bidders Edge used an automated process to search various auction sites for items to post for customers use. eBay was one of the auction sites searched by Bidders Edge, and Bidders Edge sought to negotiate terms for performing its automated searches of eBay. Negotiations failed, and eBay prohibited access to its servers. To circumvent this prohibition, Bidders Edge used proxy servers (not directly linked to Bidders Edge) to continue its automated searches. When eBay discovered this, eBay filed suit and sought a preliminary injunction to prevent Bidders Edges continued automated searches and use of eBays site. eBay claimed it would be irreparably harmed, pending a trial in the year 2001, if Bidders Edge was allowed to continue its activities. The alleged harm included reduced system performance, system unavailability, or data loss.

eBay filed suit based on several causes of action; one was that Bidders Edge was guilty of trespass to personal property. Under California law, in order to prevail in a suit for trespass based on accessing a computer system, the injured party must show the defendant intentionally and without authorization interfered with the plaintiffs possessory interest in the computer system, and that the defendants unauthorized use approximately resulted in damage to plaintiff.

Bidders Edge responded to the request for a preliminary injunction by arguing that it could not trespass because eBays site is publicly accessible. So one portion of Bidders argument was that there could not be a trespass, because there was no interference with a private property right. Bidders Edge also argued that no irreparable harm would occur if the preliminary injunction was not granted, because its 80,000-100,000 hits per day represented a small fraction (approximately 1 ? percent) of the hits to eBays site. eBay admitted that these hits represented a relatively slight interference with eBays servers. The district court rejected Bidders arguments.

In eBay Inc. v. Bidders Edge Inc., 99-21200, California Northern District Court Judge Ronald Whyte ruled that eBay was likely to prevail on the trespassing claim, and granted the preliminary injunction. In its opinion, the court found that eBays servers were private property. eBay intended to give conditional and limited public access to those servers, and eBay did not intend that the public use its servers in the way contemplated by Bidders Edge. The court noted that in eBays use agreement, it specifically prohibited the type of automated access used by Bidders Edge. Further, the court ruled that irreparable harm could occur should a number of companies engage in this automated access process.

After reading the article about eBay which you have sent her, your sister emails you with the several questions listed below. All of her questions indicate that she is trying to figure out how to design her Internet dating website so that it is legal and so that she does not get tangled up in a complicated lawsuit.

Write an email to your sister that addresses all of her concerns and the questions below and that helps her to decide the best course. Place your response in the drop box. Do not email it to your instructor.



The topic is
What did Bidders Edge do that was different than eBays normal customers? Why does it matter to eBay?


Look in your text. What is the definition of traditional trespass to personal property?


Does the definition of trespass to personal property in your text differ from the California definition of trespass to computer services? How?