Transcript Richard Warner, Trespass V

The Case for The Right to
Prevent Access
Richard Warner
First Claim
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The case for the right rests on two claims.
First: Internet systems contain information
that, absent a right to prevent access, receives
legal protection against appropriation and use
by third parties.
Purely factual compilations of data receive no
copyright protection, and, absent a right to
prevent access, the information can be
searched and extracted by others.
Second Claim
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Second: it would promote both freedom and
efficiency to protect this information by a
right to prevent access.
The right promotes freedom by allowing the
property owner to decide who can have access
to and use his or her property.
Protecting Freedom
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If we do not protect the freedom in this way,
how will we determine the extent to which
Internet system owners have control over their
property?
Are we going to invent a new approach?
It is difficult to regulate appropriately when
confronted with rapid and revolutionary
technological, cultural, and economic change.
The Sensible Course
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The sensible course is to start with a model
which is relatively well-understood and
whose consequences are predictable with
some accuracy; and then
adapt the model to the new situations we
confront on the Internet.
Promoting Efficiency
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A commitment to a free market economy is a
commitment to letting market participants
decide to what, when, and with whom they
buy and sell.
Other things being equal, letting market
participants decide is more efficient than
taking the decision out of their hands
Efficiency and Property Rights
Property rights play an essential role in placing
market decisions in the hands of market
participants.
 Not only do they define who is entitled to
exchange what;
 they also enable sellers to control with whom
they share business resources and to whom
they will sell, as well as where, when and how
they do so.
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Brick-And-Mortar Analogy
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In the brick-and-mortar world, trespass to land
and trespass to chattels provide a business
with a broad right to control access to its real
and personal property
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Cullane v. State (282 Ark. 286, 668 S. W. 2d 24 (S. Ct.
Ark. 1984)
Why not do so on the Internet?
Let’s look more closely at the need for such
protection.
The eBay Business Context
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eBay’s revenue depends on a network effect.
To see why, ask: why do buyers go to eBay?
Because it has the most items for sale. Why is
that?
Because most sellers use eBay.
Why? Because most buyers use it.
So . . .
A Network Effect
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So: most buyers and sellers use eBay because
most buyers and sellers expect most buyers
and sellers to use eBay.
This ensures that most buyers and sellers do
in fact continue to use eBay,
which ensures that most buyers and sellers
will continue to expect most buyers and
sellers to use eBay,
which ensures that . . .
The Network Effect and Revenue
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eBay’s revenue depends on this network
effect.
Its revenue comes from primarily from
transaction fees charged to sellers.
The fees are relatively small, so eBay has to
have a large volume of sales.
eBay’s size matters for this reason, and its
size is a function of the network effect.
Bidder’s Edge’s Threat
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Bidder’ Edge threatened to undercut eBay’s
network effect.
Imagine large numbers of buyers had begun
to use Bidder’s Edge in preference to any
other site, and imagine you are a seller.
Where should you post your item for sale?
It Does Not Matter
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No matter where you put it, buyers will find it
on Bidder’s Edge.
Hence, sellers would no longer have a
powerful motive to post on eBay.
eBay’s network effect would be undercut.
Defense for eBay?
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Should eBay be able to defend itself against
this threat?
Surely it should.
Does it already have adequate legal
protection?
Computer Fraud and Abuse Act
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Does the Computer Fraud and Abuse Act
provide the desired protection?
Only if eBay lost at least $5000 as a result of
Bidder’s Edge’s activities.
eBay probably lost very little if anything.
What eBay Wants
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eBay is looking for an injunction to stop
Bidder’s Edge before it causes significant
damage.
Compare EF Cultural Travel v. Explorica,
where:
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There was sufficient damage;
The access was discovered long after it happened.
IP Law Protection?
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Trademark violation? No. No trademarked
items involved.
 Compare Oyster Software v. Forms
Processing, which involved copying
trademarked language in metatags.
Copyright violation?
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The data Bidder’s Edge wants is factual
information complied in a database, and,
under Feist, there is no copyright protection.
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Feist Publications, Inc. v. Rural Telephone
Service Co., 499 U.S. 340 (1991).
The situation is the same in Register.com v.
Verio and Tickets.com v. Ticketmaster.
Trespass To Chattels
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We can provide protection via trespass to
chattels. But should we follow eBay or Intel?
eBay: any intentional, unauthorized use of
another computer system is trespass.
Intel: intentional, unauthorized use is a
trespass only when it sufficiently impairs
value or sufficiently harms a relevant interest.
 Just using computer capacity is not enough.
Looks Like Intel
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It looks like we should follow Intel.
What eBay wants to protect itself from is a
threat to its business.
In the brick-and-mortar cases, we allow
businesses to protect themselves from just
such a threat by finding a trespass.
So why not count the business threat as a
sufficient harm?
The Problem
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We need to develop a systematic view of what
counts as a impairment/harm that will provide
a principled ground for deciding particular
cases.
This is likely to prove very difficult as there
will be many different types of impairment
and harm.
Why are some impairments and harms
sufficient for trespass while others are not?
An Example
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Rex owns and runs Real Web Babes (RWB), a
web site consisting of a collection of
hyperlinks to web pages with pictures of
women.
RWB links to resumes containing pictures of
women; to personal web sites displaying
pictures of vacations; and so on.
Rex catalogues the pictures in terms of
attractiveness on a 1 to 10 scale.
Example Continued
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He collects the links using automated robot
search software which he sends to publicly
accessible web sites.
Sally maintains a personal web site on which
she displays pictures of her vacations.
Rex links to the site.
Sally is offended, and she notifies Rex that he
is not authorized to link to her site.
Trespass?
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Rex does not remove the link.
Instead, he posts a message that quotes Sally’s
demand that RWB not link to her site, and
adds “Don’t let this one tell us what we can
and can’t do!” John, a visitor to Rex’s site,
reads the posting and uses the link.
Should we regard Sally’s offense a sufficient
impairment in value or harm to support a
trespass to chattels claim?
How Broad A Right?
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Conclusion: an Internet system should have
the right to prevent access when there is
sufficient harm to the business.
We have not argued that a system owner
should be able to turn any access into a
trespass simply by informing the other party
that such access is no longer authorized.
A Better Alternative
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Go back to eBay; count any use of
computing capacity as an impairment of
value.
To see how to limit the right, recall that
 trespass to chattels involves intentional,
unauthorized access; and,
 by making an Internet system publicly
accessible, the system owner impliedly
consents to public access.
Limiting the Right
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So: we can limit the right to prevent access
by developing a doctrine about when consent
is implied, and when it is, and is not,
revocable.
We hold that a publicly accessible web site
gives implied consent (across a wide range of
cases) to receiving e-mail, searches by search
engines, and to various forms of hyperlinking.
We hold that consent can be revoked in these
cases only in exceptional circumstances.