[*] Candidate, 2005, Villanova University School of Law; M.S., 1997, University of Colorado; M.A., 1993, Fairleigh Dickenson University; B.S., 1990, Boston University. The author would like to thank his wife, Jennifer, for her insightful comments and patience on earlier drafts.

[1] See Nick Donofrio, The Nature of Computing, Address before the TECHXNY Conference (June 25, 2002), in 17 Executive Speeches 4, Feb. 1, 2003 (noting that development of Internet and related technologies has been more “evolution” than “revolution”), available at 2003 WL 15423422.

[2] See UNESCO, The World Communication and Information Report 1999-2000, at 158, (noting 1990s was the decade of Internet commercialization and expansion), available at www.unesco.org/webworld/wirerpt/vers-web.htm (last visited Mar. 18, 2004). The move towards privatization of the Internet, however, has been occurring since the late 1970s when DARPA began to involve the outside research community in decision making for ARPANET (the precursor to the modern Internet) standards until this standard-making process was taken over by the private sector entirely in the mid 1980s. Id. at 159 (noting evolution of Internet from research tool to commercial network).

[3] See Donofrio, supra note 1, at 11 (noting Internet’s evolution and growth). The common interfaces that interlinked computers and networks to form the Internet continue to expand to new devices, bringing society closer to “anywhere-anytime” access to this vast repository of information. Id. at 8.

[4] See Compuserve, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1018 (S.D. Ohio 1997) (calling the Internet a “decentralized, global medium of communications — or ‘cyberspace’ — that links people, institutions, corporations, and governments around the world.”). One scholar noted that “[i]n the 1990’s, the Internet expanded from a purely government-funded, experimental computer network to an international web of commercial, educational, and private computer sites.” Daniel Caffarelli, Crossing Virtual Lines: Trespass on the Internet, 5 B.U. J. Sci. & Tech. L. 6 ¶ 1 (1999). “Massive amounts of digital information, in numerous formats, are now available in cyberspace.” Jordan Blanke, Vincent Van Gogh, “Sweat of the Brow” and Database Protection, 39 Am. Bus. L.J. 645, 647 (2002).

[5] Donofrio, supra note 1, at 9.

[6] “One need only to look at the Web to see how easy it has become to collect and copy information of any type.” Blanke, supra note 4, at 647. For example, in Pollstar v. Gigmania, Ltd., the plaintiffs were engaged in compiling information regarding upcoming concerts, which it used to provide music business professionals with an accurate and reliable source of industry and concert information. See Pollstar v. Gigmania, Ltd., 170 F. Supp. 2d 974, 976 (E.D. Cal. 2000) (“Pollstar alleges that it created and developed up-to-the-day time sensitive concert information that was published daily on its web site.”); see also Pollstar, About Pollstar, available at www.pollstar.com/about_pollstar.pl (last visited Mar. 18, 2004). The defendant regularly accessed the plaintiff’s web site, and copied the concert information onto its own competing web site. See Pollstar, 170 F. Supp. 2d at 976 (alleging Gigmania misappropriated Pollstar’s information by copying and reusing information on its competing web site). The plaintiff claimed the value of this information, namely the accuracy and time sensitivity of the data they compiled, was misappropriated by the defendant, and this “free riding” on their efforts reduced their incentive to collect and publish this information. Id. at 977 (alleging Pollstar was damaged by Gigmania’s misuse of information posted on their web site).

[7] See, e.g., Register.com v. Verio, 126 F. Supp. 2d 238, 242 (S.D.N.Y. 2000). The defendant in Register.com used an automated search robot to search a database of the plaintiff’s customer information to generate leads for the defendant’s services which were in direct competition with the plaintiff’s services. Id. at 244-45.

[8] See, e.g., Ticketmaster v. Tickets.com, 2003 WL 21406289, at *3, (C.D. Cal. 2003). Tickets.com, the defendant in Ticketmaster, employed an automated search robot to search the Ticketmaster site for desired event information, and then copied that information over to their own web site. Id. Tickets.com also provided direct links to the relevant event page on the Ticketmaster site from the Tickets.com site. Id. Another common complaint about “deep linking,” or linking to a page on a web site other than the front page, is that the practice disrupts revenues for ad-supported web sites. See Farhad Manjoo, Site Barks About Deep Link, WIRED NEWS (May 1, 2002), at www.wired.com/news/politics/0,1283,52213,00.html; see id. commentary (Mar. 2, 2001), n.6. By connecting visitors directly to pages deep within a target site, these links allow a viewer to avoid advertising located on the main page — which can result in loss of advertising revenue to the targeted site. See id.; see also Pollstar, 170 F. Supp. 2d at 976 (bringing claim of common law misappropriation for concert data copied off plaintiff’s web site and posted on defendant’s site); Ticketmaster, 2003 WL 21406289, at *5 (noting claim of lost advertising revenue from deep linking).

[9] See, e.g, eBay v. Bidder’s Edge, 100 F. Supp. 2d 1058, 1071 (N.D. Cal. 2000) (noting that web sites are personal property and unauthorized use of automated spiders to search another’s web site constitutes use of some portion of another’s personal property). Unauthorized use of another’s personal property is not a property right that is recognized under the law. Id. at 1071 (finding trespass to chattels from unauthorized web site searches).

[10] For a further discussion of the trespass to chattels doctrine, see infra text accompanying notes 13–62.

[11] For a further discussion of criticisms levied against the cyber-trespass theory, see infra text accompanying notes 63–144.

[12] For a further discussion of the applicability of trespass to chattels doctrine in cyberspace, see infra text accompanying notes 145–53.

[13] See Richard Warner, Border Disputes: Trespass to Chattels on the Internet, 47 Vill. L. Rev. 117, 120 (2002) (“applying the doctrine [of trespass to chattels] to the Internet carries the danger that courts will invoke a traditional, and possibly inappropriate, property right in ways that interfere with the Internet’s life-blood.”).

[14] See Caffarelli, supra note 4, ¶ 9. The jargon of web sites, such as navigating the web, finding specific addresses, etc. all reflect the reality of the Internet as a form of property. Id. (noting parallels between real property and cyberspace).

[15] See Richard A. Epstein, Centennial Tribute Essay: Cybertrespass, 70 U. Chi. L. Rev. 73, 83 (2003). The early law distinguished personal property (chattels) from real property by whether the item was or was not movable. Id. Given the fixed nature of a web site and its cyberspace location, the rules of real property often provide a better fit. Id.

[16] See Caffarelli, supra note 4, ¶¶ 22-25 (identifying cyberspace as property). The Ninth Circuit identified a three-part test to determine whether a property right exists. See G.S. Rasmussen & Assocs. v. Kalitta Flying Serv., 958 F.2d 896, 902-03 (9th Cir. 1992). For a property right to exist (1) there must be an interest capable of precise definition, (2) the interest in question must be capable of exclusive possession or control, and (3) the owner must have a legitimate claim to exclusivity. Id. Web sites meet all three of these criteria allowing them to be regarded as property, and therefore subject to the exercise of property rights. See Caffarelli, supra note 4, ¶¶ 22– 23 (applying Rasmussen test to cyberspace).

[17] See Kremen v. Cohen, 2003 WL 21715318, at *6, (9th Cir. 2003) (holding Internet domain name a form of intangible property, providing the basis for conversion claim against domain name registrar who improperly reassigned domain name); see also Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) (holding the right to use a domain name as a form of personal property); Network Solutions, Inc. v. Clue Computing, 946 F. Supp. 858, 860 (D. Colo. 1996) (finding domain name a form of personal property).

[18] See Astroworks v. Astroexhibit, 257 F. Supp. 2d 609, 618 (S.D.N.Y. 2003) (maintaining a claim of conversion of defendant’s Astroexhibit web site).

[19] See eBay, 100 F. Supp. 2d at 1067 \(holding owners of web sites have right to exclude unwanted traffic).

[20] Restatement (Second) of Torts § 217 (1965).

[21] Restatement (Second) of Torts § 163 (1965).

One who intentionally enters land in the possession of another is subject to liability to the possessor for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or person in whose security the possessor has a legally protected interest.

Id.

[22] Restatement (Second) of Torts § 218 (1965). “The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel.” Id. cmt. e. “The deprivation of use, not amounting to a dispossession, necessary to render the actor liable for his use or other intermeddling with the chattel of another without the other’s consent must be for a time so substantial that it is possible to estimate the loss caused thereby.” Id. cmt. i.

[23] The term “trespass” is limited to intentional interferences. Restatement (Second) of Torts § 217 cmt. b (1965). It is necessary that the trespasser know that his actions are intermeddling with the possessory interest of another. Id. cmt. c.

[24] For example, in eBay, eBay notified Bidder’s Edge verbally and in writing that their actions were unauthorized prior to bringing suit. See eBay v. Bidder’s Edge, 100 F. Supp. 2d 1058, 1062 (N.D. Cal. 2000). Bidder’s Edge continued to crawl eBay’s site, actively evading eBay’s efforts to block their activities using “rotating” proxy servers. Id. at 1063-64.

[25] Under the Restatement (Second) of Torts, if a web site were deemed a public utility or common carrier (like phone companies, gas and electric companies, innkeepers, etc.), it would be required to permit any use of its chattels that is reasonably necessary to the enjoyment of their site. See Restatement (Second) of Torts § 259 (1965). Web sites, however, are not deemed a public utility, even though they open themselves to public access. See Island Online, Inc. v. Network Solutions, Inc., 119 F. Supp. 2d 289, 306-07 (E.D.N.Y. 2000) (“the Internet is, by no stretch of the imagination, a traditional and exclusive public function”); Register.com v. Verio, 126 F. Supp. 2d 247 (S.D.N.Y. 2000) (denying the defendant privilege to access plaintiff’s web site on grounds of web sites being a public utility).

[26] See Caffarelli, supra note 4, at *47 (“[o]nce a [web site] creator established a set of guidelines, the consent or permission granted by the rules would limit a visitor’s freedom to interact or ‘intermeddle’ with the site”); see also eBay, 100 F. Supp. 2d at 1068 (finding ability to crawl public web site governed by the terms of the site owner’s license agreement).

[27] See Ticketmaster Corp. v. Tickets.com, Inc., 2003 WL 21406289, at *2 (C.D. Cal. 2003) (holding that contract is formed by proceeding into the interior web pages after knowledge, or presumptive knowledge, of the conditions accepted in doing so). Web sites, and their servers, are private property to which the public is granted conditional access. See eBay, 100 F. Supp. 2d at 1070. The terms of this access are at the discretion of the site owner. Id. Web site owners may, however, be held to make their license terms governing the use of the site, and information on the site, prominent to site visitors in order to claim presumptive knowledge. See Ticketmaster, 2003 WL 21406289, at *2 (finding that warning that proceeding further binds web site visitor to conditions of use when placement of warning “could not be missed”); see also Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002) (finding no mutual assent when notice of existence of license terms governing software use was visible to Internet users only by scrolling down the screen).

[28] Rather than “shrink wrap” licenses applied to the outside packaging on software, the Pollstar court termed web site licenses “browse wrap” licenses, which are part of the web site itself, asking for visitors to assent to their terms when visiting the web site. See Pollstar v. Gigmania, Ltd., 170 F. Supp. 2d 974, 981 (E.D. Cal. 2000). In Pollstar, the license agreement limiting use of any information gathered from the plaintiff’s web site was not set forth on the home page, but rather on a different web page, hyperlinked to the home page. Id. Visitors to the plaintiff’s web site were alerted that “use is subject to license agreement” by way of notice provided in small gray print on gray background. Id. The text linking to the license agreement was not underlined, as common Internet practice to show an active link mandates. Id. The Pollstar court raised the concern that many users presumably are not aware the license agreement is linked to the home page. Id. While the Pollstar court agreed with the defendant that visitors to the plaintiff’s web site were not immediately confronted with the notice of the license agreement, the Pollstar court did not find this made the license agreement terms invalid and unenforceable. Pollstar, 170 F. Supp. 2d at 982. “Taking into consideration the examples provided by the Seventh Circuit — showing that people sometimes enter into a contract by using a service without first seeing the terms — the browser wrap license agreement may be arguably valid and enforceable.” Id.

[29] See eBay, 100 F. Supp. 2d at 1070 (holding that when web site visitors’ activities are beyond scope of use permitted by site’s owner, access is unauthorized for establishing trespass). Under the Second Restatement, when one is authorized to make use of a chattel and then exceeds that authorization, one is violating the rights of the owner of that chattel. See Restatement (Second) of Torts § 228 (1965).

Although the rules of common law pleading did not permit an action of trespass against one who tortiously remained in contact with a chattel if his original contact with it had been made pursuant to the possessor’s consent, he was liable to the possessor of the chattel or to one entitled to its immediate possession in an action on the case for any harm thus caused to the chattel. Such conduct is treated in the Restatement of this Subject as a trespass, since the abolition of the forms of action has very largely done away with the distinction, and even where vestiges of it remain it is one of procedure rather than substance.

Restatement (Second) of Torts § 217 cmt. g (1965).

[30] See R. Clifton Merrell, Trespass to Chattels in the Age of the Internet, 80 Wash U. L.Q. 675, 680 (2002) (noting loosening of trespass requirements over time).

[31] See Thrifty-Tel, Inc. v. Bezenek, 54 Cal. Rptr. 2d 468, 473 n.6 (Cal. Ct. App. 1996) (“the requirement of a tangible [intrusion] has been relaxed almost to the point of being discarded”); Merrell, supra note 30, at 680. The defendant in Thrifty-Tel was accused of using a computer access code and a computer to crack the plaintiff’s telephone network to make free telephone calls. Thrifty-Tel, 54 Cal. Rptr. 2d at 471. The Thifty-Tel court found the defendant’s generation of 1300 phone calls in a seven-hour period a sufficient electronic intrusion onto the plaintiff’s network to constitute trespass to chattels claim. Id. at 471, 473.

[32] Thifty-Tel, 54 Cal. Rptr. 2d. at 468.

[33] See id. at 473 n.6 (“In our view, the electronic signals generated by the Bezenek boys’ activities were sufficiently tangible to support a trespass cause of action.”); see also State v. McGraw, 480 N.E.2d 552, 554 (Ind. 1985) (recognizing unauthorized access to a computer is trespass rather than criminal conversion).

[34] See Thrifty-Tel, 54 Cal. Rptr. 2d at 473 n.8. This doctrine has also been applied to the Internet regarding unsolicited e-mail (also known as “spam” mail); see CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997) (holding that electronic “touches” constitute sufficient trespass to meet the requirements for trespass to chattels). Some states have also incorporated electronic intrusions (such as computer hacking) as a criminal offense. For example, in Virginia, unauthorized use of a computer or computer network to make or use an unauthorized copy of computer data, programs, or software is a misdemeanor (unless the damage is $2,500 or more, in which case it is a felony offense). See Va. Code Ann. § 18.2-152.4 (Michie 2003).

[35] Thifty-Tel, 54 Cal. Rptr. 2d at 471. While Thrifty-Tel did not present evidence of actual losses from the defendant’s actions, they did present losses based on their PUC-approved rate schedule to provide a basis for damages. Id. Based on the “unauthorized usage” tariff, Thrifty-Tel claimed $33,720 in damages and almost $14,000 in attorney fees and costs. Id. at 472.

[36] Under the Second Restatement, a person can be subject to liability if they deprive a person who is entitled to immediate possession of the chattel (like Thrifty-Tel’s customers) of use of the chattel for a substantial time. Restatement (Second) of Torts § 219 (1965). Persons who dispossess another of their chattels are liable under trespass for the damages done. Id. § 222.

[37] For example, in eBay, the defendant’s searches of the plaintiff’s site constituted only a negligible load on its computer resources. See eBay, 100 F. Supp. 2d at 1063. The defendant estimated the load on the plaintiff’s system from their activities to be no more than 0.70% of the data transferred by eBay. Id.

[38] Critics of the application of trespass to these types of cases claim that by allowing trespass claims for cases where there have been nominal damages creates an absolute property right in cyberspace, akin to trespass to land, but without the limits of land ownership. See Laura Quilter, Regulating Conduct on the Internet: The Continuing Expansion of Cyberspace Trespass to Chattels, 17 Berkeley Tech. L.J. 421, 440-41 (2002). Others, however, have held that the modern application of trespass to chattels includes even the unauthorized use of someone else’s personal property. See William Prosser et al., Prosser and Keeton on Torts § 14 (5th ed. 1984). Trespass to chattels is applied largely as the “little brother of conversion” where the conduct does not amount to conversion, but consists of intermeddling with another’s property. Id.

[39] Other cases have also dealt with the question of cyber-trespass. See, e.g., Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000) (finding company’s automated searching of competitor’s web site to gather marketing leads actionable trespass); America Online, Inc. v. IMS, 24 F. Supp. 2d 548 (E.D. Va. 1998) (holding unsolicited sending of bulk e-mail actionable trespass to chattels); CompuServe, Inc. v. Cyber Promotions, Inc., 963 F. Supp. 1015 (S.D. Ohio 1997) (finding bulk e-mail diminished value of plaintiff’s equipment sufficient to support trespass to chattels claim); cf. Intel Corp. v. Hamidi, 1 Cal. Rptr. 3d 32 (Cal. 2003) (holding unwanted e-mails failed to cause sufficient injury to plaintiff’s computer systems for actionable trespass to chattels claim).

[40] 100 F. Supp. 2d 1058.

[41] Id. In March 2000, when the eBay suit was decided, the Bidder’s Edge web site listed information on more than 5 million items being auctioned on more than 100 auction sites, as well as additional auction-related services and information. Id. at 1061. Bidder’s Edge maintained a searchable database compiled by automated queries of online auction sites which allowed their users to search for a given item across multiple auction sites. Id. at 1062.

[42] Id. At the time of the suit, eBay had over 7 million registered users, with over 400,000 new items added to the site every day. Id. at 1060. Users on eBay performed, on average, 10 million searches per day, placing 600 bids per minute on almost 3 million posted items. Id. eBay bills themselves as “the World’s Online Marketplace™,” noting that eBay is “the most popular shopping destination on the Internet.” eBay, Company Overview, n.6, at http://pages.ebay.com/community/aboutebay/overview/index.html.

[43] At the time of the lawsuit, approximately 69% of the auction items listed on the Bidder’s Edge site were from eBay. See eBay, 100 F. Supp. 2d at 1063. Bidder’s Edge estimated that it could lose one-third of its users if it could not include the eBay auctions in its listings. See id.

[44] Id. at 1061. By aggregating the auction information in their own database, visitors to the Bidder’s Edge web site were able to search a single database, which compared auction listings from more than one hundred auction sites, without having to search each site individually. Id. at 1062.

[45] Id. at 1062. The version of eBay’s user agreement in force at the time the suit was decided specifically prohibited the use of “any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission.” Id. at 1060. It was not clear to the eBay court, if the then-current version of eBay’s user agreement was in effect when Bidder’s Edge began searching the eBay site. Id. The documented communications between the parties, however, left no question that Bidder’s Edge had knowledge that its searches of eBay’s web site were unwelcome. Id. at 1062. eBay attempted to identify unwelcome robotic activity on its site by monitoring the number of incoming requests from each particular IP address (a unique identifier assigned to each computer to enable it to communicate over the Internet), and blocking further requests from specific IP addresses it believed were conducting unauthorized activities on its site. eBay, 100 F. Supp. 2d at 1061. Blocking queries from individual IP addresses, however, is not always successful. Id. Outgoing requests, like the searches from Bidder’s Edge, can be routed through proxy servers so that they appear to the incoming site as originating from that proxy server (with a different IP address). Id. Information requests routed through these proxy servers are not easily traceable back to the originating IP address, and are often used to circumvent any attempt to block access from a particular address. Id. While eBay had blocked a total of 169 IP addresses it believed Bidder’s Edge was using to query their site, Bidder’s Edge employed “rotating proxy servers” to evade eBay’s blocks. Id. at 1062-63. This practice leads to what the eBay court termed a game of “hide-and-seek,” which can be potentially counterproductive since it runs a substantial risk of blocking legitimate and desirable users (who use a particular proxy server) from accessing the site. Id. at 1061.

[46] Id. at 1060. The main dispute between eBay and Bidder’s Edge was the method that Bidder’s Edge used to search eBay’s site. Id. at 1062. eBay wanted Bidder’s Edge to conduct searches of its system only when a user queried the Bidder’s Edge system. Id. Bidder’s Edge wanted to crawl eBay’s site recursively to compile its own database. Id. The method used by Bidder’s Edge allowed it to better track the auctions and automatically update its users when activity occurred in a particular auction. eBay, 100 F. Supp. 2d at 1062. This method, however, creates an increased load on eBay’s systems from the searches of Bidder’s Edge. Id. The injunction sought by eBay, however, was not limited to restricting how Bidder’s Edge could take data from eBay’s site. Id. at 1063.

[47] Id. at 1073. The eBay court order did not, however, preclude Bidder’s Edge from using information obtained from eBay’s site “other than by automated query program, robot, web crawler, or similar device.” Id. at 1073.

[48] eBay, 100 F. Supp. 2d at 1063. eBay alleged damages between $45,323 and $61,804 from the activities of Bidder’s Edge. Id. The eBay court found these calculations flawed, since they assumed maximum usage of eBay’s resources over the entire ten month period in question and attributed a pro rata share of eBay’s total expenditure to the activities of Bidder’s Edge, rather than giving a precise calculation of the incremental cost to eBay from the activities of Bidder’s Edge. Id.

[49] Id. at 1066. The eBay court found that denial of preliminary injunctive relief for eBay would “present a strong likelihood of irreparable harm.” Id. Reasoning that, while one crawler may use only one percent of eBay’s resources, if hundreds of other companies used similar crawlers on eBay’s site, eBay would be “brought to its knees by what would then be a debilitating load.” Id. at 1066 n.14.

[50] Id. at 1066-67 (finding actionable trespass based on right to exclude unwanted web site traffic).

[51] Id. at 1067 (finding defendant’s activities a violation of plaintiff’s fundamental property rights).

[52] Id. (noting problems of permitting unauthorized web site access).

If eBay were a brick and mortar auction house with limited seating capacity, eBay would appear to be entitled to reserve those seats for potential bidders, to refuse entrance to individuals (or robots) with no intention of bidding on any of the items, and to seek preliminary injunctive relief against noncustomer trespassers.

Id.

[53] See eBay, 100 F. Supp. 2d at 1066-67. The eBay court characterized the right to exclude others as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Id. (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)).

[54] Id. at 1065. The eBay court also noted Ohio criminal trespass law covers “a business invitee who, with no intention of making a purchase, uses the business premises of another for his own gain after his invitation has been revoked.” Id. at 1065 (citing State v. Carriker, 214 N.E.2d 809, 811-12 (Ohio App. 1964)). Where the validity of a right and the ongoing infringement of that right have been established, irreparable harm, sufficient to support the need for injunctive relief, is presumed. Id. at 1066 (citing Atlas Powder Co. v. Inreco Chems., 773 F.2d 1230, 1233 (Fed. Cir. 1985)). Similar cyber-trespass cases have been resolved by granting injunctive relief to halt unauthorized access to a plaintiff’s web site. See, e.g., Andrea Ahles, Injunction Halts Access to Airfares, Fort Worth Star-Telegram, Mar. 11, 2003, at C1 (describing law suit between American Airlines and fare-aggregator web site), available at 2003 WL 13350691. American Airlines obtained an injunction from a federal court in Florida to prevent a web-based program from accessing fares on its AA.com web site. See id. The circuit court concluded that the plaintiff’s “continued and unauthorized use of its software to access and copy information from AA.com substantially interferes with American’s efforts to reduce the cost of distribution of its airline tickets,” thereby justifying the granting of immediate injunctive relief. Id.

[55] 2003 WL 21406289 (C.D. Cal. 2003).

[56] See id. at *1. Ticketmaster is the largest company in the ticket-sales industry. Id. Ticketmaster maintains event information on interior web pages, each with a unique uniform resource locator (URL) that allows the lower-level pages to be directly accessed by a user with the specific address and therefore the user can bypass the Ticketmaster front page. Id.

[57] See id. Tickets.com also provided event pages for events which it sold tickets for on its site, which contained event date, time, and description, and it gave visitors the ability to purchase tickets directly from Tickets.com. Id.

[58] These links contained only the factual information about the event, as taken from Ticketmaster’s interior event pages. Id.

[59] See id. Tickets.com’s electronic spider temporarily loaded the desired event information into the Random Access Memory (RAM) of Ticketmaster’s computers for a period of from 10-15 seconds. Id. at 2.

[60] See Ticketmaster, 2003 WL 21406289, at *2. Ticketmaster also brought suit on a contract basis, alleging Tickets.com’s activities violated Ticketmaster’s license agreement. Id.

[61] Id. at *3 (noting numerous published and unpublished district court cases discussing chattel theory).

These cases tend to support the proposition that `mere invasion or use of a portion of the web site by a spider is a trespass (leading at least to nominal damages), and that there need not be an independent showing of direct harm either to the chattel (unlikely in the case of a spider) or tangible interference with the use of the computer being invaded.

Id.

[62] Id. (“requiring some tangible interference with the use or operation of the computer being invaded by the spider.”). The Ticketmaster court “respectfully disagree[d] with other district courts’ finding that mere use of a spider to enter a [publicly] available web site to gather information, without more, is sufficient to fulfill the harm requirement for trespass to chattels.” Id. The Ticketmaster court characterized Ticketmaster’s trespass claim in this context as attempting “to apply a medieval common law concept in an entirely new situation which should be disposed of by modern law designed to protect intellectual property interests.” Id.

[63] Id. (recognizing legal scholars’ criticisms of cyber-trespass claims). In spite of the weight of case law supporting the proposition of trespass to chattels in cases like this, the Ticketmaster court noted there is a good deal of scholarly work criticizing the extension of the trespass to chattels doctrine to an Internet context. Id.; see, e.g., Quilter, supra note 38, at 441 (finding trespass doctrine ill-suited to cyberspace); Merrell, supra note 30, at 675 (“Applying trepass to chattles to the Internet is like driving a horse and buggy on the information superhighway.”).

[64] Many scholars characterize this as a “quick fix” by courts to troublesome Internet issues, without recognizing the inherent shortcomings of the application of an ancient legal doctrine to cyberspace. See, e.g., Quilter, supra note 38, at 435 (characterizing trespass to chattels on the Internet as a new form of property protection that is beyond a court’s powers to create).

[65] Brief of Amici Curiae, Mark A. Lemley et al. at 3, eBay v. Bidder’s Edge, 100 F. Supp. 2d 1058 (N.D. Cal. 2000) (No. 00-15995).

[66] See Warner, supra note 13, at 119. The Internet is a modern phenomena while trespass doctrine evolved in a very different economic and technological setting. See id. This leaves questions as to whether the trespass doctrine can properly balance the interests of businesses and users on the Internet. See id.

[67] See Lemley Brief at 8, eBay (No. 00-15995) (calling search engines “one of the fundamental building blocks of the Internet.”). Since search engines generally rely on the same spider technology used by the defendant in eBay, Lemley and twenty-seven other law professors, in their amicus curiae brief expressed fear that the eBay court’s decision would make the functioning of search engines an illegal activity. Id. (noting similarity of search engine technology and spiders used by defendant in eBay).

[68] For a discussion of the application of the voluntary Robot Exclusion Standard to direct search engines to avoid searching all or part of a site, see infra notes 70 & 71. For a discussion of other technological solutions to avoid unwanted web site links and automated database searches, see infra notes 78 & 79.

[69] Internet Engineering Task Force, The Internet Standards Process — Revision 3, Network Working Group, Request for Comments Number 2026, § 1 at 2, (Oct. 1996) (describing Internet as “loosely-organized international collaboration of autonomous, interconnected networks, support[ing] host-to-host communication through voluntary adherence to open protocols and procedures defined by Internet Standards.”), available at http://www.ietf.org/rfc/rfc2026.txt (last visited Mar. 2, 2004).

[70] See Web Robots Pages, A Standard for Robot Exclusion, available at http://www.robotstxt.org/wc/norobots.html (last visited Mar. 2, 2004). This standard allows a web site owner to indicate to visiting robots that the site (or part of the site) should not be visited. Id.

[The Robot Exclusion Standard] is not an official standard backed by a standards body, or owned by any commercial organi[z]ation. It is not enforced by anybody, and there [are] no guarantee[s] that all current and future robots will use it. Consider it a common facility the majority of robot authors offer the WWW community to protect WWW server[s] against unwanted accesses by their robots.

[71] See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1063 (N.D. Cal. 2000) (noting “[i]t appears that major Internet search engines, such as Yahoo!, Google, Excite and AltaVista, respect the Robot Exclusion Standard”). See, e.g., Google.com, Google Information for Webmasters (providing direction to webmasters for excluding their site from Google’s searches using Robot Exclusion Protocol), available at http://www.google.com/webmasters/3.html (last visited Mar. 2,2004). “[B]efore crawling a site/directory, [the MSN search robot,] MSNBOT[,] will look at the first line of the robots.txt file. If it finds the User-Agent ‘MSNBOT,’ MSNBOT will honor the request and will not crawl the site/directory.” MSN, The MSN Search Prototype Web Crawler — Frequently Asked Questions, available at http://search.msn.com/msnbot.htm (last visited Mar. 2, 2004). Kimbo Mundy, co-founder of Bidder’s Edge, acknowledged a year before the Bidder’s Edge web site debuted that “well-behaved robots are still expected to check the robots.txt file.” eBay, 100 F. Supp. 2d at 1062.

[72] See Merrell, supra note 30, at 694 (noting similarities of methods used in search engines and eBay searches). “Should eBay stand, the doctrine [of trespass to chattels] would place search engines at the mercy and will of individual web sites.” Id.

[73] See Lemley Brief at 6, eBay (No. 00-15995). Lemley, and the other law professors writing in favor of Bidder’s Edge, cited that tools that electronically gather information are critical to providing consumers with information about online alternatives. Id. This provides a hedge against the market power of larger companies who draw traffic to their web site by use of a strong brand identity. Id.

[74] Critics of the trespass theory on the Internet believe the public interest “overwhelmingly cuts against” granting companies the ability to control their information on the Internet, citing the benefits of electronic commerce and the ability to easily compare prices between competing web sites available at auction aggregation sites like Bidder’s Edge. See id. at 3. The plaintiffs in these cases, however, are not gathering this information for free or as part of a commitment to the public interest; they are for-profit entities. See, e.g., eBay, 100 F. Supp. 2d at 1062. Even Bidder’s Edge executives admitted in their internal communications that “[i]t is one thing for customers to use a tool to check a site and quite another for a single commercial enterprise to do so on a repeated basis and then to distribute that information for profit.” Id.

[75] See Lemley Brief at 9, eBay (No. 00-15995) (noting broader implications of right to control access to a “public” site without regard to actual injury to that site). “The single most basic characteristic of the World Wide Web is one Web site’s ability to link to another, and users’ ability to follow those links.” Id.

[76] Deacons, Copyright and Deep Linking (Legal500.com) (noting simple steps a web site owner can take to prevent deep linking), available at http://www.icclaw.com/devs/hk/ip/hkip_001.htm (last visited Mar. 2, 2004).

[77] “[A]nother term for macro or batch file, a script is a list of commands that can be executed without user interaction.” Internet.com, Webopedia, available at http://www.webopedia.com/TERM/s/script.html (last visited Mar. 2, 2004).

[78] A name token is “a string composed of any combination of name characters.” Techdictionary.com, Token, available at www.techdictionary.com (last visited Mar. 2, 2004). A URL token scheme dynamically creates the link address when a visitor clicks on an authorized link, embedding a randomly generated permission token into the URL link. Deacons, supra note 76. The generation of these tokens can be done on a timed basis, “so that the permission token changes every hour or every day.” Id. A link created using an expired token “will not let a visitor get to the sought-after page, or [will] alternatively bump the visitor to the gateway page.” Id.

[79] For example, visitors seeking to search the WHOIS database must first enter a code, embedded in a displayed image, used to prevent automated programs from requesting information from the database. See, e.g., Network Solutions, Inc., WHOIS Search, available at http://www.networksolutions.com/en_US/whois/index.jhtml (last visited Mar. 2, 2004). Users entering a domain name to search for on this page are directed to a screening page which asks visitors to enter an alphanumeric code displayed on the screen embedded in an image before continuing with the search. Id. The WHOIS database is the same database of domain name information at issue in Register.com, where the plaintiff sought an injunction to prevent the defendant from conducting automated searches of its database. See Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238, 241 (S.D.N.Y. 2000).

[80] See infra note 79 (showing an example of the additional manual steps required for users seeking information from the WHOIS online database that resulted from the security measures employed to prevent unauthorized searches).

[81] See Lemley Brief at 10, eBay (No. 00-15995) (claiming eBay court’s decision threatens “free and robust exchange of information that has become the celebrated hallmark of the Internet.”).

[82] Efforts to block traffic to web sites “can be easily circumvented and will seriously disrupt legitimate e-commerce and speech.” Stewart Baker, Prepared Statement of Mr. Stewart Baker General Counsel, U.S. Internet Service Provider Association, Committee on Senate Banking, Housing and Urban Affairs (transcript available in the Federal Document Clearing House, Inc.).

[83] See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1062 (N.D. Cal. 2000) (outlining steps taken by eBay to prevent unwanted searches of their web site).

[84] Id. at 1062-63. The eBay court noted the potentially counterproductive nature of the endless game of “hide-and-seek” played by web site owners and those attempting to circumvent attempts to block them as “run[ning] a substantial risk of blocking requests from legitimate, desirable users.” See id. at 1061.

[85] See Baker, supra note 82. Part of the reason blocking traffic by IP address disrupts “a large number of lawful communications and legitimate commerce” is that many different web sites and users can share a single IP address. Id. The Internet is commonly populated by IP addresses that have been “contaminated, perhaps permanently, because they once hosted spammers thus causing those address blocks to be entombed into the memories of an unknown number of anti-spam filters not merely at the end user level but also deep in the routing infrastructure of the net.” Karl Auerbach, Is the Internet Dying?, CircleID (Aug. 20, 2003) available at http://www.circleid.com/article/215_0_1_0_C/ (last visited Mar. 2, 2004).

[86] Richard Marting, Bidder Wrangle, ABCNEWS.com (Oct. 6, 2000) (quoting from full page Bidder’s Edge ad decrying eBay court’s ruling) available at http://abcnews.go.com/sections/tech/DailyNews/biddersedge991006.html (last visited Jan. 30, 2004).

[87] See eBay, 100 F. Supp. 2d at 1062-63. Recent statistics show that 87% of all active domain names share their address with at least one other domain name and more than 66% of active domain names share their addresses with 50 or more additional domains. Baker, supra note 82 (citing Harvard Law School study).

[88] See Merrell, supra note 30, at 689 (citing claims of trespass by electrons “. . . too ethereal and metaphysical to justify a cause of action at law.”).

[89] See id. “Such claims seem too tenuous to satisfy the physical contact element of an intentional tort like trespass to chattels.” Id. “If a chattel’s receipt of an electronic communication constitutes a trespass to that chattel, then not only are unsolicited telephone calls and faxes trespasses to chattel, but unwelcome radio waves and television signals also constitute a trespass to chattel every time the viewer inadvertently sees or hears the unwanted program.” Intel v. Hamidi, 1 Cal. Rptr. 3d 32, 46 (Cal. 2003).

[90] See Epstein, supra note 15, at 85. Critics often argue that web site owners consented to the trespass by opening their site to millions of Internet users. Merrell, supra note 30, at 693. The argument follows that by having open access to a web site, it is reasonable to expect undesirable traffic to take up their site’s limited capacity. Id. Some critics believe this implied consent should be limitless and irrevocable, holding that “consent should be an allowable defense to chattels claim on the Internet, irrespective of attempts to negate that consent.” Id. at 694. The majority of courts have disagreed with this unlimited implied consent doctrine, allowing it to be expressly withdrawn, or governed by a site’s license agreement. See, e.g., eBay, 100 F. Supp. 2d at 1070 (holding visitor’s terms of use limited by license terms on web site, and by express notification from site’s owner); Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238, 248 (S.D.N.Y. 2000) (holding submitting of query to online database binds party to site’s terms of use).

[91] See Epstein, supra note 15, at 85. “[S]ocial expectations make it clear that ordinary phone calls and faxes are not trespasses, any more so than routine entries into department stores.” Id. “[C]onsent is implied from the circumstances until the owner tells the entrant to stay off (if not on the premises) or leave (if he is).” Id.

[92] For a discussion of the trespass doctrine applied to unwanted commercial mail, see infra text accompanying note 95. For a discussion of trespass doctrine applied to unwanted telemarketing calls and e-mails, see infra text accompanying note 100.

[93] See Rowan v. U.S. Post Office, 397 U.S. 728 (1970) (rejecting right to send unwanted commercial mail into another’s home).

[94] Id.

[95] Id. at 737 (holding householder exclusive and final judge over what mail he or she will receive). The U.S. Supreme Court in Rowan found actionable trespass, even in the absence of physical damage or dispossession, based solely on the violation of a person’s prerogative “to be free from sights, sounds and tangible matter we do not want.” Id. at 736. The Court in Rowan deemed a mailer’s “right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.” Id. at 737. While the addressees did not demonstrate any physical damage to their chattels, like the kind sought by critics of the chattels doctrine, the Court found that the unwanted mail violated the “wall” that a citizen may erect so that no one “may penetrate without his acquiescence,” providing sufficient damages to justify government intervention to prevent further intrusions. See id. at 738. While limiting receipt of unwanted mail clearly has the effect of impeding the free flow of ideas and communications, the Rowan Court found the right to communicate “must stop at the mailbox of an unreceptive addressee.” Rowan, 397 U.S. at 737.

[96] Id. (upholding right of every householder to control unwanted mail).

[97] See Restrictions on Use of Telephone Equipment, 47 U.S.C. § 227(b)(1)(C) (2003) (prohibiting use of telephone facsimile machine, computer, or other device to send unsolicited advertisement to another facsimile machine).

[98] 323 F.3d 649 (8th Cir. 2003).

[99] See id. at 660 (holding restriction on unsolicited commercial fax advertisements “achieves a reasonable fit between the means it adopts and the ends it seeks to serve”).

[100] See Federal Trade Commission, Telemarketing Sales Rule, 16 C.F.R. § 310 (2003) (effective Mar. 31, 2003). Under this rule, consumers may place their phone number on a centralized “do-not-call” list to stop calls from all companies within the FTC’s jurisdiction (subject to certain exemptions). Id. § 310.4(a) The rule also requires telemarketers to disclose the identity of the seller, transmit caller ID information, and also restricts allowable calling times. Id. § 310.4(a)(7)-(e)(2) Violations of this rule could entail fines on the telemarketer of up to $11,000 per call. See Federal Trade Commission, Calling All Telemarketers: Amendments to the FTC’s Telemarketing Sales Rule, Fact for Business, at 2 (Mar. 2003), available at http://www.ftc.gov/bcp/conline/pubs/buspobs/calling.pdf (last visited Apr. 20, 2004). While there have been last-minute legal maneuvers to prevent the rule from going into effect, a do-not-call list containing over fifty million home and cell phone numbers was placed in service on October 1, 2003, pending appeal of lawsuits filed on behalf of the Direct Marketing Agency, and others. See Jane Larson & David Ho, Do-Not-Call List Goes Into Effect, but Uncertainty Remains, Ariz. Republic, Sept. 30, 2003. This legislation spawned a high-profile legal battle waged by the American Teleservices Association, and other industry groups, on behalf of their member companies to block the implementation of the new rule claiming the list would devastate the industry and violate the First Amendment rights of telemarketers. See Associated Press, Telemarketers Sue Over Do-Not-Call List, FOXNews.com (July 28, 2003), at http://www.foxnews.com/story/0,2933,93091,00.html. In spite of these claims, the home phone numbers of at least eleven DMA executives were found on the FTC’s do-not-call registry. See Jack Courant, Telemarketing Execs on Do-Not-Call List, Hartford Courant, Oct. 1, 2003, at A1. Jack Mahadevia, a retired DMA Senior Vice President admitted to signing up to block unwanted phone calls, claiming “[t]here are so many calls I don’t want . . . they are disturbing my routine.” Id. Similar provisions are under congressional proposal to prohibit unsolicited commercial e-mails. See To Prevent Unsolicited Commercial Electronic Mail, H.R. 2214, 108th Cong. (2003) (proposing legislation permitting persons to opt out from unsolicited commercial e-mail and providing criminal penalties for parties who transmit these e-mails after recipient has opted out). Some states, like California, have already begun to take legislative action against unsolicited e-mail on their own. See, e.g., Reuters, Calif. Enacts Nation’s Toughest Anti-Spam Bill, USA Today, Sept. 25, 2003, at 3B (reporting recent California state law prohibiting unsolicited e-mail with fines up to $1 million per violation). Several states have statutes placing limitations on unsolicited commercial e-mails, such as requiring unsolicited commercial e-mail to be labeled at the beginning of the e-mail’s subject line with “ADV” and including opt-out instructions to the recipient which must be honored by the sender. See David E. Sorkin, Summary of State Spam Laws, available at http://www.spamlaws.com/state/summary.html (last visited Jan. 30, 2004). See also Tex Bus. & Com. Code Ann. § 46 (Vernon 2003) (providing criminal penalties for unsolicited commercial e-mail not properly labeled as advertising and requiring opt-out provision for future e-mail from sender).

[101] See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1065 (N.D. Cal. 2000) (holding eBay did not make “the required showing that this is the type of extraordinary case in which monetary damages may support equitable relief.”).

[102] Quilter, supra note 38, at 441 (granting web site owners trespass to chattels remedy gives rights that do “not apply to any other communications medium (e.g., televisions and telephones).”).

[103] See Restatement (Second) of Torts § 217 (1965) (permitting trespass claim for intentional dispossession of chattels); see also Restatement (Second) of Torts § 218 (1965) (permitting trespass claim for impairment of chattels’ quality or condition). “. . . While a harmless use or touching of personal property may be a technical trespass (see Rest.2d Torts, § 217), an interference (not amounting to dispossession) is not actionable, . . . without a showing of harm.” Intel Corp. v. Hamidi, 1 Cal. Rptr. 3d 32, 40 (2003).

[104] Various measures of damages have been proposed for these types of cyber-trespasses. For example, in eBay, the plaintiff attempted to estimate the impact of the defendant’s activities as part of the total load on its computer system (and collect a pro-rata portion of its total system costs for the portion of the system used by the defendant), as well as collect for reputational damage (from misleading postings of its information), and trademark dilution from the defendant’s actions. See eBay, 100 F. Supp. 2d at 1064-65. In Register.com, the plaintiff claimed lost processing power (citing a “rough estimate” of a 2.3% loss in system resources) from the defendant’s activities. See Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238, 249 (S.D.N.Y. 2000). In Ticketmaster, the plaintiff claimed damages that included the value of the information taken by the defendant (the information was sold to other parties by the plaintiff) and the time and money expended in trying to frustrate the defendant’s attempts to access their site. See Ticketmaster Corp. v. Tickets.com, Inc., 2003 WL 21406289, at *3 (C.D. Cal. 2003). In deep linking cases, where a party provides a link to a target web site allowing readers to bypass the site’s front page, damages are often calculated as lost advertising revenues. See Manjoo, supra note 8. For example, the Dallas Morning News recently sent letters to site owners who linked directly to news articles on the paper’s web site, claiming that such links allow viewers to avoid the advertising on the home page. Id. Since web banner advertising often charges on a per-view basis, each visitor who bypasses a page with online advertising constitutes a potential revenue loss to the site owner. See Thor Olavsrud, Tickets.com Wins One, Internetnews.com (Aug. 15, 2000), at www.internetnews.com/ec-news/article.php/438011. For example, Ticketmaster.com received revenue from advertisers based on the number of hits on the page where the advertising is located. Id. In the case of Ticketmaster.com, at the time of the suit, both its home page and its interior pages carried advertising which generated revenue for Ticketmaster. Id. The difficulty in this information is calculating how many visitors are directed to these deep links that would have gone through the higher level pages and how many are purely incremental visitors to the target site. In many of these cases, however, the directing web site is still a competitor, even if it does direct incremental traffic to the target web site. See id. (noting Tickets.com remained a Ticketmaster competitor, regardless of incremental site traffic they directed to the Ticketmaster web site).

[105] See Epstein, supra note 15, at 82 (“the very inability to estimate damages offers yet an additional reason to award injunctive relief”). The eBay court found that while there was “some uncertainty as to the precise level of possessory interference required to constitute an intermeddling, there does not appear to be any dispute [that] eBay can show the conduct of Bidder’s Edge amounts to use of eBay’s computer systems.” eBay, 100 F. Supp. 2d at 1070. In spite of eBay’s inability to provide an acceptable calculation of damages attributable to the searches by Bidder’s Edge, the eBay court found grounds to issue an injunction. Id. at 1072.

[106] See Epstein, supra note 15, at 81 (“no plaintiff will sue to recover when the costs of litigation exceed the expected recovery of suit.”). While a web site may not be physically harmed in these cyber-trespass incidents, when a party takes information from a competitor’s web site and potentially denies the owner of that site revenues, a reasonable business person could conclude these actions destroyed some of the web site’s commercial, competitive value “thereby fulfilling the damage element of a trespass claim.” Caffarelli, supra note 4, ¶ 45.

[107] Restatement (Second) of Torts § 218 (permitting actionable trespass claims for dispossessing persons of their chattels).

[108] Id. § 218(a)-(b) (providing requirements for trespass to chattels claim).

[109] Restatement (Second) of Torts § 222 cmt. a (1965) (“[A] dispossession is always a trespass to the chattel, and subjects the actor to liability for at least nominal damages for the interference with the possession.”). Even “taking another man’s hat by mistake and returning it within two minutes upon discovery of the mistake” is trespass sufficient to allow recovery for damages for the interference with the possession. Id.

[110] See Ticketmaster Corp. v. Tickets.com, Inc., 2003 WL 21406289, at *3 (C.D. Cal. 2003).

Pending appellate guidance, this court comes down on the side of requiring some tangible interference with the use or operation of the computer being invaded by the spider. Restatement (Second) of Torts § 219 requires a showing that “the chattel is impaired as to its condition, quality, or value.” Therefore, unless there is actual dispossession of the chattel for a substantial time (not present here), the elements of the tort have not been made out. Since the spider does not cause physical injury to the chattel, there must be some evidence that the use or utility of the computer (or computer network) being “spiderized” is adversely affected by the use of the spider. No such evidence is presented here.

Id.

[111] For example, the eBay court found temporary dispossession of limited cyber-resources from unwanted searches on eBay’s web site sufficient to constitute trespass. See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1071 (N.D. Cal. 2000).

[112] Ticketmaster, 2003 WL 21406289, at *2 (describing the spider function of Tickets.com). The Tickets.com spider extracted the factual information (event date, time, ticket prices, and URL) from Ticketron’s web site and reformatted this information for display on the appropriate Tickets.com page. Id. at *2.

[113] See Compuserve, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1022 (S.D. Ohio 1997) (finding unwanted electronic mailings demand disk space and processing power of plaintiff’s computer equipment). By using the plaintiff’s computing resources for their unauthorized electronic mailings, the defendant denied use of these resources to the plaintiff’s customers, thereby diminishing the value of that equipment sufficient to sustain trespass to chattels claim. Id.

[114] See eBay, 100 F. Supp. 2d at 1071. eBay estimated the total load on their servers from the activities of Bidder’s Edge at between 1.11% and 1.53% of the total load on their servers. Id. at 1064. Even if a party’s actions use only a small portion of another’s web site resources, it creates an actionable trespass. Id. at 1071. “The law recognizes no such right to use another’s personal property.” Id.

[115] See, e.g., Compuserve, 962 F. Supp. at 1015 (finding claim for trespass based on defendant’s transmission of unsolicited e-mail to plaintiff’s systems); eBay, 100 F. Supp. 2d at 1058 (finding trespass claim based on plaintiff’s partial use of defendant’s web site resources).

[116] 126 F. Supp. 2d 238 (S.D.N.Y. 2000).

[117] See id. at 250 (holding that, while plaintiff was unable to measure how much their system’s capacity was reduced, continued possessory interference with plaintiff’s web site resources was sufficient to merit injunction against defendant’s actions).

[118] See eBay, 100 F. Supp. 2d at 1071 (noting use of even a small percentage of plaintiff’s processing capacity deprives it of right to use that capacity for their own purposes).

[119] Id.

[120] See Epstein, supra note 15, at 83 (noting in similar cases, “when the dust settles, if these defendants had been allowed to continue just as they are, then the upshot is that the defendant is entitled to receive an uncompensated compulsory license to use the equipment of the plaintiff for his own advantage.”).

[121] See Prosser et al., supra note 38, at 85. Trespass to chattels is unique in that it allows redress to cover the unauthorized use of personal property that falls short of conversion:

Its chief importance now, is that there may be recovery . . . for interferences with the possession of chattels which are not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered. Trespass to chattels survives today, in other words, largely as a little brother of conversion.

Id.

[122] See Merrell, supra note 30, at 675 (noting eBay first brought its court action against Bidder’s Edge under copyright laws, which was dismissed). Ticketmaster also unsuccessfully claimed copyright violations from Tickets.com’s use of its information. See Ticketmaster Corp. v. Tickets.com, Inc., 2003 WL 21406289, at *5 (C.D. Cal. 2003) (noting information Ticketmaster sought to protect was unprotected, and publicly available factual event information was not protected under Copyright Act).

[123] See eBay, 100 F. Supp. 2d at 1072 (noting dismissal of eBay’s earlier copyright infringement claim). See also Ticketmaster, 2003 WL 21406289, at *5 (dismissing Ticketmaster’s copyright infringement claims). The copyright protection for factual compilations is very thin. See Feist Publ’ns, Inc., v. Rural Tel. Svc. Co., 499 U.S. 340, 349 (1991) (holding phone listings compiled in phonebook not copyrightable information). “[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking.” Id. The copyright “assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Id. at 349-50. This leaves businesses and web sites that compile information unable to claim copyright protection for this information. See Merrell, supra note 30, at 696.

[124] See Merrell, supra note 30, at 697 (“[t]his end-run around the laws of copyright is inconsistent with federal copyright laws as interpreted in Feist and, under the Supremacy Clause, should be preempted.”).

[125] See Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1212 (9th Cir. 1998) (holding state claim for unfair competition preempted by federal copyright law).

[126] See Xerox Corp. v. Apple Computer, Inc., 734 F. Supp. 1542, 1550 (N.D. Cal. 1990) (holding state claim for unfair business practices preempted by Copyright Act).

[127] See eBay, 100 F. Supp. 2d at 1072 (holding right to exclude others from using physical personal property under trespass law not equivalent to rights protected by copyright).

[128] See, e.g., id. at 1073. The eBay court limited its injunction to the means used by Bidder’s Edge to obtain the data from eBay. See id. (“[n]othing in this order precludes BE from utilizing information obtained from eBay’s site other than by automated query program, robot, web crawler or similar device.”). Other similar web-based copyright claims have similarly been dismissed. See, e.g., Associated Press, Not All Web Protected, Miami Herald, Apr. 10, 2004, at B8 (describing ruling by Florida federal district court), available at 2004 WL 75366787. A U.S. district court in Florida held that a web site that aggregates yacht listings, photos, and product descriptions from other web sites did not violate the copyrights held by the originating web sites. See id. The web site, YachtWorld.com, used a software program to harvest information from other web sites to compile its listings of yachts for sale. See id. These listings were comprised of photos, descriptions, and price listings of yachts available for sale on a number of other web sites, including the plaintiff’s Boats.com web site. See id. The YachtWorld.com court ruled that this data was unprotected by copyright law and YachtWorld.com’s use did not infringe on any Boats.com copyrights. Id. (noting that copyright to yacht photos and descriptions were held by individual yacht owners, not plaintiff).

[129] 203 F.3d 596 (9th Cir. 2000).

[130] 977 F.2d 1510 (9th Cir. 1993).

[131] Both Sony and Sega held reverse-engineering of the plaintiff’s copyrighted code was permissible “fair use” of that code since it was the only way in which the unprotected elements within the code could be obtained. See also Ticketmaster Corp. v. Tickets.com, 2003 WL 21406289, at *4 (C.D. Cal. 2003) (applying “fair use” doctrine to making temporary copy of electronic web site information).

[132] 86 F.3d 1447 (7th Cir. 1996).

[133] See id. The ProCD court found the shrink wrap license terms on the plaintiff’s CD/ROM constituted a sufficient contract between ProCD and a user of the CD/ROM (the defendant). Id. at 1452-53. The ProCD court noted that enforcement of the limitations of these license terms does not withdraw any information from the public domain. Id. at 1455. “Everyone remains free to copy and disseminate all 3,000 telephone books that have been incorporated into ProCD’s database.” Id. Licenses help facilitate distribution of the databases, making the information even more readily available, and “serve the same procompetitive functions as does the law of trade secrets.” ProCD, 86 F.3d at 1455 (quoting Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174,180 (7th Cir. 1991)).

[134] See Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238, 246 (S.D.N.Y. 2000) (holding that submitting query to Internet database indicates agreement to abide by stated terms of use for information retrieved from that database).

[135] See Pollstar v. Gigmania, Ltd., 170 F. Supp. 2d 974 (E.D. Cal. 2000) (holding charges competitor violated the unfair competition statute by downloading concert information off plaintiff’s web site not preempted by the Copyright Act since information was protected as “hot news”).

[136] 248 U.S. 215 (1918).

[137] Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 843 (2d Cir. 1997) (holding “hot news” misappropriation claims survive preemption by the Copyright Act since these claims fail general scope requirement).

[138] See, e.g., Pollstar, 170 F. Supp. 2d at 976. In Pollstar, the plaintiff alleged the concert information it created and developed was up-to-the-day, time-sensitive information, posted on its web site at great time and expense to itself. See id. The defendant in this case, Gigmania, downloaded the information from the Pollstar site, and then posted the information on its competing site. See id. The Pollstar court found there was a sufficient showing by the plaintiff to put the question of whether this was or was not “hot news” before a jury. Id. at 980. Despite the similar facts between the cases, the “hot news” argument was not addressed by the Ticketmaster court. See Ticketmaster, Corp. v. Tickets.com, Inc., 2003 WL 21406289 (C.D. Cal. 2003).

[139] Pollstar, 170 F. Supp. 2d at 974.

[140] See id. at 980 (holding plaintiff’s misappropriation claim was pled with sufficiency to constitute a “hot news” claim).

[141] See id. at 976. Pollstar asserted the value of the concert information on its web site derived from the accuracy and time-sensitiveness of the information. See id. at 977.

[142] See id. at 976. In its complaint, Pollstar alleged Gigmania downloaded data from the pollstar.com site and posted the information on its own site, www.gigmania.com. Id. This use of Pollstar’s information was expressly prohibited by the terms of Pollstar’s license agreement which forbade commercial use of the information found on the web site without the specific written permission of the publisher. Id. at 976 n.1.

[143] See id. at 980. The defendant in Pollstar conceded that the plaintiff had collected the information at some cost, and that it was a direct competitor. Id. at 979-80. Gigmania contended that the concert information on the Pollstar web site was not highly time sensitive, and that Pollstar failed to establish Gigmania was a free rider who threatened the existence of Pollstar’s services. Id. at 980. The Pollstar court agreed there was no case law defining this type of information as “hot news,” but nonetheless found the plaintiff’s complaint was pled with sufficiency to state a “hot news” claim. Id.

[144] See Ticketmaster, Corp. v. Tickets.com, Inc., 2003 WL 21406289 (C.D. Cal. 2003). Ticketmaster brought copyright claims on three grounds. Id. at *4. First, Ticketmaster claimed that the momentary copying of the electronic signals used to generate the visual representation to the viewer of Ticketmaster’s interior web pages was copyright infringement. Id. Second, Ticketmaster claimed that the URLs copied and used by the defendant to provide deep links to its site were copyrightable material. Id. Third, Ticketmaster claimed that the deep linking caused unauthorized display of their event pages. Id. The Ticketmaster court granted a summary judgment for the defendant on all of Ticketmaster’s copyright claims. Ticketmaster, 2003 WL 21406289, at *6.

[145] See Mark Grossman, Miami Herald Technology Law Column, Miami Herald, Oct. 27, 2002 (“Forget th[e] Wild West metaphor. It’s a myth. Cyberspace doesn’t exist outside the legal system.”), available at 2002 WL 101943991.

Of the many metaphors that have been applied to the Internet, the most prominent and influential has been the imagination of the Internet as a separate, new physical place known as “cyberspace” and its comparison to America’s Western Frontier. This “Western Frontier” metaphor is both powerful and persistent. . . . The West’s remoteness ensured the absence of legal and social constraints associated with the civilized East. . . . One can see the Internet in a similar way. Cyberspace “pioneers” experience the Internet as a special place devoid of the rules and constraints of “real space.” This makes cyberspace a place where people find freedom from real space rules.

Alfred C. Yen, Western Frontier or Feudal Society?: Metaphors and Perceptions of Cyberspace, 17 Berkley Tech. L.J. 1207, 1210 (2002).

[146] “Claim jumping” and horse theft were the most common frontier crimes — both of which were most often punishable by death. See M.J. Welch, History of Douglas County Nevada, NEGen Web Project — Douglas County, available at http://www.rootsweb.com/~nedougla/html/douglas1.htm (last visited Mar. 3, 2004). When early western settlements were made, lands were not yet formally surveyed, and settlers formed “claim clubs” to define and protect their property. Id. The methods of these clubs in settling claim disputes was described as “extremely effective, if unorthodox,” applying swift and often violent vigilante justice. Id. Horse thievery was also often handled with similar vigilante justice — ending with horse thieves hanging from the nearest available tree limb. Id.

[147] See Yen, supra note 145, at 1212-13 (noting the shortcomings of the Wild West metaphor). “This troubling use of the Western Frontier metaphor conveniently overlooks historical episodes of injustice and exploitation in the West that appropriate legal regulation might have prevented.” Id. at 1213.

[148] Richard Epstein referred to this process as legal incrementalism where new forms of technology create new forms of resource uses, and property law emerges to govern the transactions between persons in taking advantage of these new technological possibilities. See Epstein, supra note 15, at 73-74. Epstein noted that, when properly applied, the rules of trespass “carry over to cyberspace without missing a beat.” Id. at 81.

[149] See Caffarelli, supra note 4, ¶ 1 (noting confusion and uncertainty of Internet users when sorting out their rights in cyberspace).

[150] Id. (“[a]s the Internet becomes even more commercial, the need for formalistic, predictable legal standards will increase”). “While some people may view the Web as a utopian environment, where ideas and information are readily and freely exchanged, others may see it as a horrific nightmare, where goods and wares are stolen by thieves who cannot even be seen.” Blanke, supra note 4, at 647.

[151] See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1071 (N.D. Cal. 2000) (finding defendant’s searches of plaintiff’s web site depriving plaintiff of use of a portion of their personal property).

[152] Since the issuance of the injunction in eBay, the company has reached licensing agreements with similar auction aggregation sites, like PriceRadar and BidXS.com, allowing searches of their sites and listing of their auctions along with the auctions on other competing sites. See BidXS Signs Agreement with eBay (June 30, 2000), at http://www.prweb.com/releases/2000/6/prweb15948.php; see also Ken Cimino, Price Radar Gains Access to eBay Listings, Internet.com (Apr. 26, 2000), at http://siliconvalley.internet.com/news/article.php/348381. Other similar cases have also settled amicably following court-issued injunctions. See, e.g., Ahles, supra note 54, at C3. Three months following an injuction by a federal court to stop FareChase from accessing American Airline’s web site to collect fare information, the companies reached an agreement to allow FareChase access to American Airline’s AA.com web site and ability to book American Airlines fares through FareChase’s web software. Id. (describing settlement benefits for both parties).

[153] See Epstein, supra note 15, at 87-88.

So long as we keep our eye on the ball, we do not have to be fearful of the imagined consequences that will follow by taking the older rules of trespass and carrying them over to the brave new world of cyberspace, which, when all is said and done, for legal purposes at least, is neither as brave nor as new as it first appears.

Id.