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When is "Linking" an Illegal Trespass?

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 Bidder's Edge?" She has no idea what you're talking about, so you give her the following article.

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

"Linking" is a common practice on the Internet. One Web page often establishes a "link" to 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. Bidder's 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. Bidder's 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 Bidder's 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, Bidder's Edge used proxy servers (not directly linked to Bidder's Edge) to continue its automated searches. When eBay discovered this, eBay filed suit and sought a preliminary injunction to prevent Bidder's Edge's continued automated searches and use of eBay's site. eBay claimed it would be irreparably harmed, pending a trial in the year 2001, if Bidder's 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 Bidder's 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 plaintiff's possessory interest in the computer system, and that the defendant's unauthorized use approximately resulted in damage to plaintiff.

Bidder's Edge responded to the request for a preliminary injunction by arguing that it could not trespass because eBay's site is publicly accessible. So one portion of Bidder's argument was that there could not be a trespass, because there was no interference with a private property right. Bidder's 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 ½ percent) of the hits to eBay's site. eBay admitted that these hits represented a relatively slight interference with eBay's servers. The district court rejected Bidder's arguments.

In eBay Inc. v. Bidder's 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 eBay's 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 Bidder's Edge. The court noted that in eBay's use agreement, it specifically prohibited the type of automated access used by Bidder's 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.

What did Bidder's Edge do that was different than eBay's 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?

Solution Preview

Hi,

Interesting case! After reading the article, what do you think about the California court's decisions? It is an important case to consider when designing a website.

One approach to help you with this type of assignment is to go through each question, which can act as a tentative outline for your e-mail to your "sister" and provide tips on how to write the e-mail, which you can draw on for your final copy. This is the approach this response takes. In fact, each question should be one or two paragraphs, and you might even consider including the questions for clarity and organization. I will leave that up to you.

RESPONSE:

1. 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.

You might begin your e-mail something to the effect...

Dear sister,

I received your email concerning the eBay Inc. v. Bidder's Edge ...

Solution Summary

Based on the case scenario and through analogy, this solution provides an outline for the e-mail answering the questions posed in an attempt to determine when "linking" is an illegal trespass, knowledge needed prior to developing a website for home-based business.

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