Designer Skin LLC v. S & L Vitamins, Inc., et al.
Ebay Inc. v. Bidder's Edge, Inc.
100 F. Supp. 2d 1058 (N.D. Cal., May 24, 2000)
Court issued a preliminary injunction, enjoining Bidder's Edge Inc. ("BE") from using a software robot or other automated query program to access without permission eBay's computer systems for the purpose of obtaining information concerning ongoing auctions at eBay, on the grounds that such activity is likely to constitute a prohibited trespass to chattels.
Ebay operates a person-to-person trading web site, on which sellers can offer for sale via auction various items. Ebay is, at present, "by far the biggest consumer to consumer on-line auction site." Defendant Bidder's Edge operates an auction aggregation web site, on which it offers online auction-buyers information concerning auctions being conducted on a number of web sites, including eBay. This information allows a prospective buyer via a single search at a single location to ascertain whether a desired item is being offered for sale on one of numerous web sites. Information concerning eBay auctions accounts for approximately 69% of the information found on the BE site.
BE obtains information about eBay's auctions by causing a software robot to crawl eBay's site. BE causes this robot to access eBay's site approximately 100,000 times a day. EBay claimed that this activity "represents between 1.11% and 1.53% of the total load on eBay's listing servers."
In April 1999, eBay granted BE permission to crawl its site for a period of 90 days. The parties attempted during this period to enter into a formal license arrangement, but were unable to do so. After negotiations failed, eBay requested that BE stop crawling its site, with which request BE complied. Thereafter, BE resumed crawling the eBay site. Again, eBay informed BE to cease this activity, and again, the parties attempted, but failed to reach agreement on an appropriate license. Thereafter, BE continued to crawl eBay's site, and eBay's efforts to block BE from continuing this activity proved unsuccessful.
EBay moved for a preliminary injunction, enjoining BE from continuing to use a software robot to crawl the site without permission. Finding that eBay was likely to prevail on its claim that such conduct constituted a trespass to chattels, and would possibly cause eBay irreparable injury, the Court enjoined BE from continuing this activity.
To prevail on an application for a preliminary injunction, a party may show "a likelihood of success on the merits [of its claim] and the possibility of irreparable injury."
The court held that on the record before it eBay had not established that BE's actions, standing alone, injured or harmed eBay's computer systems. While BE's robots did access eBay's computers over 100,000 times a day, eBay had not yet shown that this activity caused it to have to increase the capacity of its system, or slowed or diminished the experience of the users of its site.
However, the court held that eBay had shown that there was a possibility that it would sustain irreparable injury because "if BE's activity is allowed to continue unchecked, it would encourage other auction aggregators to engage in similar recursive searching of the eBay system such that eBay would suffer irreparable harm from reduced system performance, system unavailability or data losses." This in turn would injure eBay's goodwill with its customers, or cause it to lose profits, and thereby raises the scepter of irreparable injury.
The court also held that eBay met the second prerequisite for injunctive relief, because it was likely to succeed on its claim of trespass to chattels. "In order to prevail on a claim for trespass based on accessing a computer system, the plaintiff must establish: (1) defendant intentionally and without authorization interfered with plaintiff's possessory interest in the computer system; and (2) defendant's unauthorized use proximately resulted in damage to plaintiff."
The court held that BE's activities were unauthorized, given, in part, the fact that BE continued to crawl eBay's web site after eBay demanded BE terminate such activity. The fact that eBay's site is publicly accessible did not alter this conclusion because EBay does not permit the public to engage in the type of automated access conducted by BE without express permission. As such, BE's actions exceed the consented access, and are unauthorized. The court further held that BE's conduct interfered with eBay's possessory interest in its computer system. The court held that the plaintiff need not establish a "substantial interference" to establish a claim for trespass to computers. Rather "intermeddling with or use of another's personal property is sufficient to establish a cause of action for trespass to chattels", a standard eBay clearly met given BE's repeated accessing of its computer system.
Lastly, the court found that eBay had shown the requisite damage needed to prevail on its trespass claim. In reaching this conclusion, the court again relied heavily on the fact that BE's use of robots to crawl eBay's site, if allowed to continue, would encourage others to do the same, which collective activity could well cause injury to eBay's computers by placing an excessive load on the system. Said the court:
BE argues that its searches represent a negligible load on plaintiff's computer systems, and do not rise to the level of impairment to the condition or value of eBay's computer system required to constitute a trespass. However, it is undisputed that eBay's server and its capacity are personal property, and that BE's searches use a portion of this property. Even if, as BE argues, its searches use only a small amount of eBay's computer system capacity, BE has nonetheless deprived eBay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another's personal property. Accordingly, BE's actions appear to have cause injury to eBay... If the court were to hold otherwise, it would likely encourage other auction aggregators to crawl the eBay site, potentially to the point of denying effective access to eBay's customers. ... California law does not require eBay to wait for such a disaster before applying to this court for relief. ...
The court rejected BE's argument that plaintiff's trespass claim was preempted by the federal Copyright Act because that claim has "an extra element that makes trespass qualitatively different from a copyright infringement claim."
Lastly, the injunction issued by the court does not at this time prevent "BE from utilizing information obtained from eBay's site other than by automated query program, robot, web crawler or similar device."