What if someone was constantly pinging your web-site and slowing down the performance of your internet server. Or, what if somebody was sending an automated program that was being used to query and capture important information stored on your internet server. Would that be illegal? How far would they need to go for you to get an injunction requiring them to stop? These are some of the questions that have come to surface of late as a result of the expansion of the internet and emerging creativity in programming. In three recently decided cases, eBay v. Bidders Edge, Register.com v. Verio, and Ticketmaster Corp. v. Tickets.Com, Inc., the plaintiff's lawyers took the old established theory of trespass and tried to apply it to situations in which their clients web-sites were being unacceptably used.
Normally one does not think of accessing a web site as a trespass. Trespass, in the traditional sense, is interfering with or damaging someone's property without permission. The thought that comes to mind when thinking of trespass is that of walking across a neighbor's yard without their permission. That is exactly what is happening when one visits a website, except that we are utilizing the company's internet program as well as their internet infrastructure. We have not been given explicit permission to visit the web-site but we no inherently that a web page up on the world wide web is open for all users to visit. The problem lies in how far users can go? We have not been given bright lines on what we can and can not do and how long and how many times we can use their web-site. This was one of the many questions that the courts in eBay, Register.com, and Ticketmaster Corp. tried to answer.
Each of the three companies was confronted with situations in which the companies thought someone went to far when accessing their web-site. Each of these companies claimed that the defendants went beyond the scope of their implied right to access their site and damaged/interfered with their property without permission by creating and using a web-crawler program. The programs are designed to access, accumulate, and send a high volume of data within minutes. The plaintiffs claimed that the use of these programs placed an unneeded burden on their website and their hardware. The defendants stated that they were not burdening the internet servers of the plaintiffs at all. They admitted the web crawlers used up resources but claimed that it was negligible. In analyzing both arguments the courts have settled the trespass issue in conflicting manners. Both eBay and Register.com held that the plaintiffs had full and complete control of their property and any unauthorized damage, noticeable or negligible, constituted a trespass to chattels. While Ticketmaster Corp., ruled that the damage needed to be noticeable.
The time will come when this issue will be resolved. As the courts continue to hear more of these cases it is likely that brighter lines will be drawn. As for now though, be cautious of what you do when visiting your favorite web-site, who knows whether or not you are trespassing!
