Law and the Internet: Trespass to Chattels

Abstract: This paper focuses on the use of Trespass to Chattels Law by owners as protection against the intentional use of their systems or the resources therein by unauthorized parties. The trespass to chattels law cannot be correctly applied to internet-related property rights because this law is being incorrectly used and does not adequately address the concerns of internet property owners and the rights they seek to protect.
The 19th Century trespass to chattels tort is being utilized in cyberspace to protect systems against unauthorized use in the same way it is used to protect tangible/physical property. This law was first used by internet service providers (ISPs) to fight against unsolicited bulk email or spam, which was being sent in excess over their networks and systems. However, it is becoming increasingly clear that the blanket application of this law to the internet has an adverse impact on the key function of the internet. Trespass to chattelslaw is now commonly used to fight against Robots (BOTs), which are automated programs that search the Internet. In many cases such as eBay v. Bidder’s edge, and Ticketmaster Corp. v. Tickets.com, this law was used to fight the ability of users to search the internet and of providers to present data to users. This ability to search and present data is the primary purpose of the internet, and the overbroad application of trespass to chattels law, without any form of modification or alteration, should not be used to protect internet property rights.
Tresspass to Chattels is defined as the act of direct physical interference with chattel owned by someone else without lawful justification. To make a case for Trespass to Chattles, “the plantiff must show that the defendant made a volitional movement that resulted in either: 1. Dispossesion of, or 2. Intermeddling with, the plaintiff’s personal property.” To clarify, “Dispossession is where the defendant actually asserts ownership over the chattel, and Intermeddling is merely interfacing with the plaintiff’s use of his chattel,” and the “plaintiff must show that the defendant intended to treat the property in the mannner that he did” (National Paralegal College). In other words, if I have a magazine which I left on a coffee table and someone came along and took the magazine, it leaves me without access to read the articles I wanted to read in the magazine, and that person is therefore liable for trespass to chattels because he intended to take my magazine without my permission and it does not matter if the person thought the magazine belonged to them. As we know, the Internet is an interconnected network of computer networks, in which users have access via Internet Service Providers (ISP’s) or gateway. This gateway gives users their access to the World Wide Web, with information stored on various websites. They have access to email, news feeds, and storage via the number of services. The internet has created new ways of communicating both for users and businesses, and has created new problems such as unsolicited e-mail, both bulk and commercial and junk e-mail (or as most refer to it “spam). This has caused a number of technical and legal issues for the internet community. There have been issues with Spiders, “an automated program that reads Web pages from a Website and then follows the hypertext (HTTP) links to other pages (spammers use spiders to sift through Web pages to look for (that is, harvest) email addresses),” and Robots or BOTs, “a computer program that executes a specific task according to the user's instructions” the use of systems by others to harvest information and to send unsolicited emails to users. In June 1996, in the California Court of Appeal the case of Thrifty-Tel, Inc. v. Bezenek, (although it did not deal with a Trespass to Chattel over the Internet,) was the first case in which the court judged that electronic signals were “sufficiently tangible to support a trespass cause of action” (THRIFTY-TEL, INC., Plaintiff and Respondent, v. MYRON BEZENEK et al., Defendants and Appellants). The defendants in this case were involved in the act of “phreaking”: using telephone networks to obtain free services using technical means; this was considered hacking in its earliest form. As stated in this case the Trespass to Chattel involves the direct interference of another’s property, and causes injury to that party; it “lies where an intentional interference with the possession of personal property has proximately caused injury” (THRIFTY-TEL, INC., Plaintiff and Respondent, v. MYRON BEZENEK et al., Defendants and Appellants). This ruling led to the case of CompuServe, Inc. v. Cyber Promotions, Inc., in which the plaintiff sought a preliminary injunction based on Trespass to chattelsin order to stop the defendant from sending spam to its customers over its network. “By 2009, some studies indicated that as much as 80% of total email traffic was spam and that an unprotected computer would have received 45,000 spam messages during the year” (Burgunder), spam acts as a direct threat to the effectiveness of communication over the internet, and it has lowered the trust of the internet community as well as the efficiency of the internet itself. CompuServe based their case on the findings in Thrifty-Tel to hold Cyber Promotions liable for sending spam using their system. The court relied on the Restatement Second of Torts to derive a test for its findings: “A trespass to chattel may be committed by intentionally using or intermeddling with the chattel in possession of another. Physical "intermeddling" is intentionally bringing about a physical contact with the chattel. An actor may commit a trespass by an act which brings him into an intended physical contact with a chattel in the possession of another” (CompuServe Incorporated, Plaintiff, vs. Cyber Promotions, Inc. and Sanford Wallace, Defendants) as is the case of Cyber Promotions.
The Court concluded that the defendants’ use of the plaintiff’s property diminished the value of their network, even though it did not physically harm their network. CompuServe needed only show diminished capacity, with the burden of spam, in storing and processing placed a huge burden on their network. The court stated, “To the extent that defendants' multitudinous electronic mailings demand the disk space and drain the processing power of plaintiff's computer equipment, those resources are not available to serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is diminished even though it is not physically damaged by defendants' conduct. Many subscribers have terminated their accounts specifically because of the unwanted receipt of bulk e-mail messages. Defendants' intrusions into CompuServe's computer systems, insofar as they harm plaintiff's business reputation and goodwill with its customers” (CompuServe Incorporated, Plaintiff, vs. Cyber Promotions, Inc. and Sanford Wallace, Defendants) are actionable under the Restatement Second of Torts, Trespass to Chattel.
With the successful application of this electronic trespass to spam, other Internet corporations looked to this law to deal with issues of spam and internet robots. The following cases show the Trespass to chattelslaw has been used by adopting the reasoning in the CompuServe case to find judgments. In the case of eBay, Inc. v. Bidder’s Edge, Inc., Bidder’s edge used a crawler or spider to crawl and aggregate data from various auction websites of which eBay is the largest and most successful, to be compiled in their own database for presentation on demand to their customers. The Bidder’s Edge spider scanned eBay’s website about 100,000 times a day to access information on ongoing auctions. EBay wanted to ensure that this practice was allowed as long as the users abided by their rules; they felt that many spiders were computation intensive and were successful in negotiating methods with several auction houses but could not come to an agreement with Bidder’s edge. EBay sued Bidder’s Edge on the basis of trespass to chattels, and obtained an injunction against them. The court agreed with eBay that the spider caused harm to their systems, ruling that “plaintiff's motion for a preliminary injunction preventing defendant from accessing plaintiff's computer system where the court held that defendant intentionally and without authorization interfered with plaintiff's possessory interest in the computer system and that defendant's unauthorized use proximately resulted in damage to plaintiff” (eBay, Inc.v. Bidder's Edge, Inc.). The fact is that eBay posted a licensing agreement limiting crawling on their site, the court found that “eBay's licensing activities appear directed toward limiting the amount and nature of crawling activity on the eBay site. Such licensing does not support the inference that carte blanche crawling of the eBay site would pose no threat of irreparable harm” (eBay, Inc.v. Bidder's Edge, Inc.). Bidder’s Edge’s activity was unauthorized based on the licensing agreement, the court found in eBay’s favor noting that Bidder’s Edge’s activity was unauthorized and found to have damaging effects to eBay’s systems.
Roughly the same time of the eBay case, Ticketmaster, a retailer of events tickets sued Tickets.com, a competing company who used a spider to gather event locations and times from Ticketmaster as well as other vendors. This data was then reformatted and stored in the Tickets.com database along with links to all the vendors, including that of Ticketmaster. Ticketmaster had an issue with this practice and filed suit against Tickets.com alleging trespass to chattels, as well as copyright infringement. The court issued its decision contrary to eBay, finding that Tickets.com spiders did not constitute trespass to chattels, stating, “It must be said that the trespass question presented and decided in eBay bore no resemblance to the trespass question considered by this court on the motion to dismiss last March. What this court decided (at least, what it thought it decided) was that the taking of factual information from a public source was not a trespass, and if taking the information from a publically available computer was a state law trespass, it fell afoul of the preemption aspects of the Copyright Act. However, no question of invasion of the computer by spiders, and possible consequent damage to the computer was presented to this court--at least no such question was decided. So, defendant's argument that it has already been decided and is law of the case and plaintiff's argument that the court can always reconsider a wrong decision have no place--it is a new one to this court” (Ticketmaster Corp., et al. v. Tickets.com, Inc.). Furthermore, the court felt that Ticketmaster showed no data that they suffered physical harm to their computers and Tickets.com did not sell the actual tickets but pushed customers to the Ticketmaster website. “While the trespass theory has some merit, there is insufficient proof of its elements in this case to justify a preliminary injunction” (Ticketmaster Corp., et al. v. Tickets.com, Inc.).
Also in 2000, Register.com, Inc. sued Verio, Inc. for using spiders on its Internet accessible database where domain name registrants were maintained. This database was available to the public via the Internet; Verio used a spider to scan for recently added registrants to compile contact information for marketing purposes in direct competition with Register.com. Although Register.com had little evidence to show harm to their systems, the court ruled for the plaintiff citing the eBay case, “Register.com's evidence that Verio's search robots have presented and will continue to present an unwelcome interference with, and a risk of interruption to, its computer system and servers is sufficient to demonstrate a likelihood of success on the merits of its trespass to chattels claim” (REGISTER.COM, INC., Plaintiff, v. VERIO, INC., Defendant.). The court basically did not cite any specific information that Register.com actually suffered harm form Verio, but agreed that the mere use was sufficient to interfere with the plaintiff’s systems.
In the case of Intel Corp. v Hamidi the charge by Intel is that a disgruntled employee over the course of two years sent six mass emails to thirty thousand existing employees using their Intel email addresses. The emails criticized Intel’s practices and urged employees to join Mr. Hamidi in an advocacy group against the company. Intel sued and won an injunction against Mr. Hamidi on the basis of trespass of chattels which the courts rule in favor or Intel. “Hamidi's conduct was trespassory. Even assuming Intel has not demonstrated sufficient "harm" to trigger entitlement to nominal damages for past breaches of decorum by Hamidi, it showed he was disrupting its business by using its property and therefore is entitled to injunctive relief based on a theory of trespass to chattels. Hamidi acknowledges Intel's right to self help and urges Intel could take further steps to fend off his e-mails. He has shown he will try to evade Intel's security. We conceive of no public benefit from this wasteful cat-and-mouse game which justifies depriving Intel of an injunction” (Intel Corp., v. Kourosh Kenneth Hamidi), the court cited a number of cyberspace cases using trespass to chattels to support their point that indirect harms could support this injunction.
Mr. Hamidi appealed with the support of a number of public interest groups. In 2003 “the Supreme Court reversed the judgment of the Court of Appeal. The court held that the tort of trespass to chattels does not encompass, and should not be extended to encompass, defendant's electronic communications, which neither damaged nor impaired the functioning of plaintiff's computer system. In the absence of any actual damage, a cause of action for trespass to chattels will not lie; a mere momentary or theoretical deprivation of use is not sufficient unless there is a dispossession. Thus, plaintiff's complaint was about the content of defendant's messages rather than the functioning of the company's e-mail system. Further, the consequential economic damage that plaintiff claimed to have suffered, i.e., the loss of productivity caused by plaintiff's employees reading and reacting to defendant's messages and plaintiff's efforts to block the messages, did not constitute an actionable trespass to plaintiff's personal property” (INTEL CORPORATION, Plaintiff and Respondent, v. KOUROSH KENNETH HAMIDI, Defendant and Appellant.); this presented a very different opinion of the trespass to chattels tort.
There are clearly two types of cases here, one dealing with Spam and its impact on the systems it is delivered to, the other is the use of spiders to crawl and retrieve data from the open internet. The trespass to chattels tort seems inappropriate for internet cases especially when it is being used for cases where there is no proof of burden or harm to the systems in question. “The degree of damage that must be demonstrated, at least to sustain a preliminary injunction” (Burgunder) is not clear in any of the previously mentioned cases, nor is there any clear insight to what constitutes significant harm. In the case of eBay v. Bidder’s Edge, eBay clearly had a licensing agreement; any breach of that agreement would warrant a case of breach of licensing agreement. Every website posts a terms and conditions page explaining what the website allows and does not allow the user to do. EBay clearly saw a case for spiders within their system that would affect their systems and tried to get Bidder’s Edge to agree to their limitations. If the spider was used within the guidelines of eBay’s licensing agreement, (and as the compilation of data by Tickets.com seems vital to internet users; similar to search providers who compile data for customers) spiders seem a natural part of the internet. On the other hand spam presents a definite issue to Internet Service providers. CompuServe had a case and showed impact to their servers even for that brief period of time when their computers processed the spam in question.
The question is whether the courts are providing another means to intellectual property protection and the court even touched on this in the Ticketmaster v. Tickets.com case, when it was stated that, “the major difficulty with many of plaintiff's theories and concepts is that it is attempting to find a way to protect its expensively developed basic information from what it considers a competitor and it cannot do so” (Ticketmaster Corp., et al. v. Tickets.com, Inc.). It is not the place of the courts to provide this protection through the use of this law; there are substantial intellectual property rights afforded corporations. The internet is designed for public use, Web Site owners can’t have it both ways, if the site is a public site the use of trespass to chattels seems to not fit into this model, “it is hard to see how entering a publicly available web site could be called a trespass, since all are invited to enter” (Ticketmaster Corp., et al. v. Tickets.com, Inc.). It begs the question: should Internet communication systems be deemed property and should the trespass to chattels consider them as such? It seems we are continuously applying outdated laws to new technologies. “The elements of common law trespass to chattels fit poorly in the context of cyberspace, and so the courts have been able to apply this claim to the problem of spam only by virtue of creative tailoring. Consequently, the cause of action masquerading in these cases as "trespass to chattels" is in fact a novel, hybrid form of a property right whose parameters have yet to be properly defined. Although this hybrid claim is novel, the incongruity of its elements with the operation of the Internet is not...The application of trespass is but the latest attempt to address these problems and raises the same concerns as previous attempts to subject Internet activity to a strict regime of exclusory rights” (Burke).
Although the trespass to chattels law has been used in a variety of cyberspace cases to protect the property of owners when it comes to system resources, this is not what the law was intended for. This is not what the law was intended to preclude, dealing with issues of unauthorized access to websites by way of automated computer programs. The aforementioned cases show that the law cannot be used in all scenarios, and courts have had to approach each case systematically to ensure the right decisions have been made. Unfortunately, as we are all aware, the law is slow to catch up with technology so for now it seems this is the only usable law. Additional investments need to be made in the approach to the laws of cyberspace.
“In a world where advances in information storage and transport technologies develop with breathtaking speed, it is unrealistic to expect statutory law to keep pace, regardless of how painstakingly the legislative branch tries to predict the future. Technology in this century has continually outpaced statutory law and litigants have repeatedly turned to judge-made law to protect important rights and large investments in the collection or creation of time-sensitive information and other commercially valuable content. It stands to reason that the faster a technology develops, the more rapidly it will surpass pre-existing law, and the more prominent common law theories may become. It is not surprising, therefore, that as the Internet geometrically expands its speed, accessibility, and versatility -- thereby vastly increasing the opportunities for economic free-riders to take, copy, and repackage information and information systems for profit--intellectual property owners again must consider the common law as a source of protection..." (Keller).

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