March 26, 2001
(Computerworld)
Legal scholars have debated whether the traditional legal doctrine of trespass, which generally applies to moveable physical property, should be applied in cyberspace. The issue is no longer academic, as it's now is finding its way into the courts.
Indeed, a federal judge in San Jose last year found that aggregator auction site Bidder's Edge had trespassed by pointing its "spiders" to crawl through and copy information from eBay's auction site. The judge granted eBay a preliminary injunction stopping Bidder's Edge from "accessing eBay's computer systems by use of any automated querying system without eBay's written authorization."
An appeal of the case was about to be heard when the parties recently settled.
Nevertheless, the case raises an important question about trespass: Is the Internet like a public library, where information is freely available for all, or is it more like a private store, where conditions can be placed on information access?
Judge Ronald Whyte's ruling is one of the first legal decisions to protect the contents of publicly available databases. This is important, because copyright law safeguards forms of expression, but not the assembling of facts, such as information presented in auction sites.
Bidder's Edge opposed eBay's preliminary injunction motion with the argument that it can't be guilty of trespass with respect to free and public information available to everyone on the Internet. Bidder's Edge expressed concern that a ruling of trespass not only would impact it and other aggregator sites, but also mainstream portals and search engines such as Yahoo.
Judge Whyte dismissed this argument, finding that "eBay's servers are private property, conditional access to which eBay grants the public." Indeed, Judge Whyte noted that eBay tried to block the spidering by Bidder's Edge by using "robot exclusion headers" -- electronic "no trespassing" signs -- that Bidder's Edge ignored.
Fundamental to Judge Whyte's decision is his finding that the spidering of Bidder's Edge caused a burden to eBay's computer system. The record was undisputed that Bidder's Edge accessed the eBay site approximately 100,000 times per day. According to eBay, the Web crawling by Bidder's Edge represented more than 1% of the total load on eBay's listing servers. Judge Whyte didn't want to endorse this for fear of future implications for eBay: "One crawler may currently use 1% of eBay's resources. What if hundred[s] of users used similar crawlers?"
The problem here is that to grant a preliminary injunction motion, a judge needs to find that there would be likely irreparable harm to the moving party if the injunction wasn't granted. In this instance, the judge relied purely on speculation; the record didn't support the idea that hundreds of others might follow Bidder's Edge lead, using their own spiders.
Bidder's Edge tried to turn the tables by arguing that it would suffer irreparable harm if the injunction were granted. Bidder's Edge stated that two-thirds of its listings came from eBay and argued that without those listings, the value of Bidder's Edge would be reduced by $10 million. This argument, frankly, may have cut against Bidder's Edge, as it shows how much it piggybacked on eBay's efforts. Judge Whyte swept away the argument by Bidder's Edge by siding with eBay on the merits and therefore finding that any corresponding harm to Bidder's Edge was "legally irrelevant."
Bidder's Edge appealed and filed a countersuit suit that charged eBay with antitrust violations.
Only days ago, however, it was reported that eBay and Bidder's Edge settled their dispute. According to press reports, Bidder's Edge paid eBay a sum of money and dropped its appeal and its countersuit. Meanwhile, Bidder's Edge has shut down its Web site supposedly because of "market conditions." Although amount of the settlement money hasn't been made public, it seems quite clear that the legal victor is eBay and the legal vanquished is Bidder's Edge.
Judge Whyte tried to downplay the impact of his decision by stating, "The court suspects that the Internet will not only survive but continue to grow and develop regardless of the outcome of this litigation." While the Internet will survive and grow, let there be no doubt that the issues raised in eBay vs. Bidder's Edge have implications well beyond this particular case.
Eric J. Sinrod is a partner at the San Francisco office of Duane, Morris and Heckscher LLP. He can be reached at ejsinrod@duanemorris.com. His Web site is at www.sinrodlaw.com.