Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law 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 Aug. 10, 2000) (unpublished minute order).44. 100 F. Supp. 2d 1058 (N.D. Cal. 2000).45.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).
enefits of the particular activity when deciding whether or not tohold the invader liable.50 Trespass to chattels, in contrast totrespass to real property, has always required the plaintiff toplead and prove actual harm, not possible future harm.51 TheeBay court, by holding the defendant liable for a harmlessintangible intrusion, thus invented a new cause of action.Developing such a new tort warranted a much more detailedpolicy analysis than that in which the court engaged. Forexample, the court’s economic analysis did not considercompetitive concerns such as the benefit to consumers of easilyavailable product and pricing information. Nor did it discuss howits rule fits with copyright law’s refusal to protect suchinformation or the First Amendment’s protection of commercialspeech. The court also did not consider the nature of the Web. Noone posts an Internet site without expecting—indeed, inviting—some measure of linking from other sources. Whether a siteshould be able to control who links to it and how they do so is nota question amenable to a simple answer like the strict liabilityregime the eBay court adopted.Elsewhere, I have suggested different approaches thatpolicymakers could take to address unwanted linking.52 Courtscould follow traditional trespass and nuisance law, adopting anuisance balancing test to address the intangible invasion thatoccurs when a link is employed. Because balancing tests alwayscreate uncertainty, a statutory “safe harbor,” defining permittedand forbidden means of linking and the acceptable burden a linkermay place on a server, could be created. A linker, though, shouldstill have an opportunity to challenge the safe harbor when theplaintiff’s site has engaged in misconduct. A database bill similarto one already proposed could be easily modified to adopt such anapproach, providing the linker with defenses like misuse to help50. See Restatement (Second) of Torts § 831 (1965).51. See Restatement (Second) of Torts § 218 (1965).52. See Maureen A. O’Rourke, Property Rights and Competition on the Internet: InSearch of an Appropriate Analogy, 16 Berkeley Tech. L.J. 561 (2001) (discussing howcompetition policy and antitrust law can aid policymakers in deciding how to defineproperty rights on the Internet) [hereinafter O’Rourke, Property Rights]; Maureen A.O’Rourke, Shaping Competition on the Internet: Who Owns Product and PricingInformation?, 53 Vand. L. Rev. 1965 (2000) (reviewing the competitive environment onthe Internet and the causes of action in the eBay case) [hereinafter O’Rourke, ShapingCompetition].
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enefits <strong>of</strong> the particular activity when deciding whether or not tohold the invader liable.50 Trespass to chattels, in contrast totrespass to real property, has always required the plaintiff toplead and prove actual harm, not possible future harm.51 TheeBay court, by holding the defendant liable for a harmlessintangible intrusion, thus invented a new cause <strong>of</strong> action.Developing such a new tort warranted a much more detailedpolicy analysis than that in which the court engaged. Forexample, the court’s economic analysis did not considercompetitive concerns such as the benefit to consumers <strong>of</strong> easilyavailable product and pricing information. <strong>No</strong>r did it discuss howits rule fits with copyright law’s refusal to protect suchinformation or the First Amendment’s protection <strong>of</strong> commercialspeech. The court also did not consider the nature <strong>of</strong> the Web. <strong>No</strong>one posts an Internet site without expecting—indeed, inviting—some measure <strong>of</strong> linking from other sources. Whether a siteshould be able to control who links to it and how they do so is nota question amenable to a simple answer like the strict liabilityregime the eBay court adopted.Elsewhere, I have suggested different approaches thatpolicymakers could take to address unwanted linking.52 Courtscould follow traditional trespass and nuisance law, adopting anuisance balancing test to address the intangible invasion thatoccurs when a link is employed. Because balancing tests alwayscreate uncertainty, a statutory “safe harbor,” defining permittedand forbidden means <strong>of</strong> linking and the acceptable burden a linkermay place on a server, could be created. A linker, though, shouldstill have an opportunity to challenge the safe harbor when theplaintiff’s site has engaged in misconduct. A database bill similarto one already proposed could be easily modified to adopt such anapproach, providing the linker with defenses like misuse to help50. See Restatement (Second) <strong>of</strong> Torts § 831 (1965).51. See Restatement (Second) <strong>of</strong> Torts § 218 (1965).52. See Maureen A. O’Rourke, Property Rights and Competition on the Internet: InSearch <strong>of</strong> an Appropriate Analogy, 16 Berkeley Tech. L.J. 561 (2001) (discussing howcompetition policy and antitrust law can aid policymakers in deciding how to defineproperty rights on the Internet) [hereinafter O’Rourke, Property Rights]; Maureen A.O’Rourke, Shaping Competition on the Internet: Who Owns Product and PricingInformation?, 53 Vand. L. Rev. 1965 (2000) (reviewing the competitive environment onthe Internet and the causes <strong>of</strong> action in the eBay case) [hereinafter O’Rourke, ShapingCompetition].