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When is linking an illegal trespass
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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 who 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, 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 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 that you have sent her, your friend e-mails you with the questions listed below. All of her questions indicate that she is trying to figure out how to design her Internet dating Web site so it is legal and she does not get tangled up in a complicated lawsuit. 
Write an e-mail to your friend that addresses all of her concerns and the questions below and that helps her to decide the best course. Please upload your response to the Submitted Assignments area. Do not e-mail it to your instructor. 

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?  




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