Vol 7 No 1 - Roger Williams University School of Law

could be called a trespass, since all are invited to enter.”42Ticketmaster amended its complaint to reword its claim astrespass to the computer system rather than to the Website. Thecourt rejected this claim as well, noting that Ticketmaster had notshown the functioning of its computer systems to be obstructed.43In contrast, in eBay, Inc. v. Bidder’s Edge, Inc.,44 anotherfederal district court in California held that a linker’s conductcould constitute a trespass to chattels because of the prospect offuture harm that could occur if many linkers chose to visit the siteat the same time.45 The eBay court also held that any access(including that of an individual linking to a site) necessarilyimposes a burden on the visited site’s system, justifyingapplication of trespass law.46Interestingly, the eBay court effectively formulated a newtort, despite grounding its holding on trespass to chattels. Earliercourts had held that electronic signals are tangible enough toconstitute an invasion sufficient to sustain an action fortrespass.47 However, no court had applied a strict liabilitystandard to such an invasion. Trespass to real property lawrequires that the plaintiff show actual harm when the intrusion isintangible.48 Alternatively, some courts have held that theappropriate cause of action for an intangible intrusion is nuisancerather than trespass.49 Nuisance law weighs the costs and42. Ticketmaster, 54 U.S.P.Q. 2d at 1345.43. See Ticketmaster Corp. v. Tickets.com, Inc., No. CV99-7654, 2000 U.S. Dist.LEXIS 12987, at *17 (C.D. Cal. Aug. 10, 2000) (unpublished minute order).44. 100 F. Supp. 2d 1058 (N.D. Cal. 2000).45. Id. at 1069; see also First Amended Complaint, eBay, Inc. v. Bidder’s Edge,Inc., No. C-99 21200 (N.D. Cal. 2000) (alleging that Bidder’s Edge’s conduct in using anautomated tool to search the eBay site, copy its information, and extract product andpricing data should afford eBay a remedy under a variety of causes of action). Thedistrict court entered a preliminary injunction against Bidder’s Edge under a trespassto chattels theory. See eBay, 100 F. Supp. 2d at 1069. The parties later settled thesuit. See EBay, Bidder’s Edge Settle Suits on Web Access, L.A. Times, Mar. 2, 2001, atC2. Bidder’s Edge has ceased operation. See A Message to Our Users, athttp://www.biddersedge.com (explaining that Bidder’s Edge would cease operation onFeb. 21, 2001, because of “market and financial conditions”) (last visited Feb. 19, 2001).46. See eBay, 100 F. Supp. 2d at 1071-72.47. See, e.g., Thrifty-Tel, Inc. v. Bezenek, 54 Cal. Rptr. 2d 468 (Cal. Ct. App. 1996)(holding electronic signals used to gain unauthorized access to a computer to betangible enough to support a trespass claim).48. See, e.g., Zaslow v. Kronert, 176 P.2d 1, 7 (Cal. 1946).49. See, e.g., San Diego Gas & Electric Co. v. Superior Court, 920 P.2d 669 (Cal.1996).