eBay v. Bidder's Edge | |
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Court | United States District Court for the Northern District of California |
Decided | May 24, 2000 |
Docket nos. | 99-cv-21200 |
Citation | 100 F. Supp. 2d 1058 |
Court membership | |
Judge sitting | Ronald Whyte |
Keywords | |
trespass to chattels |
eBay v. Bidder's Edge, 100 F. Supp. 2d 1058 (N.D. Cal. 2000), was a leading case applying the trespass to chattels doctrine to online activities. [1] [2] In 2000, eBay, an online auction company, successfully used the 'trespass to chattels' theory to obtain a preliminary injunction preventing Bidder's Edge, an auction data aggregator, from using a 'crawler' to gather data from eBay's website. [1] [2] [3] The opinion was a leading case applying 'trespass to chattels' to online activities, although its analysis has been criticized in more recent jurisprudence.
Bidder's Edge ("BE") was founded in 1997 as an "aggregator" of auction listings. [1] : 1061 Its website provided a database of auction listings that BE automatically collected from various auction sites, including eBay. [1] : 1061 Accordingly, BE's users could easily search auction listings from throughout the web rather than having to go to each individual auction site. [1] : 1061
eBay's "User Agreement" (terms of use) and "robot exclusion headers" (robots.txt) disallowed crawling of auction listings without prior permission. [1] : 1060 [4] [5]
In early 1998, eBay allowed BE to include Beanie Babies and Furby auction listings in BE's database. [1] : 1062 It is unclear whether BE scraped these listings from eBay or linked to them in some other format. However, on April 24, 1999, eBay verbally approved BE automatically "crawling" the eBay web site for a period of 90 days. [1] : 1062
During this time, the parties contemplated striking a formal license agreement. [1] : 1062 These negotiations did not conclude successfully because the parties could not agree on technical issues. [1] Subsequently, in early 1999, BE added auction listings from many other sites in its database, including eBay's. Despite the integration of many websites' listings, nearly 69% of the listings in BE's database were from eBay. [1] : 1063
eBay wanted BE to access the eBay system only when a BE user queried the BE system. [1] : 1062 Doing so would increase the accuracy/currency of the data BE presented to its users and impose a lighter load on eBay's network. [1] BE accessed eBay approximately 100,000 times a day, constituting about 1.53% of eBay's total daily requests. [1] : 1063 BE wanted to periodically crawl eBay's entire website to compile its own auction database, which would increase the speed of BE's response to user queries and allow BE to notify its users when eBay auctions changed. [1] : 1063
Due to the disagreement regarding technical issues, at the end of the 90-day period, eBay notified BE that its activities were no longer permitted, but eBay offered again to license BE's activities. BE did not accept eBay's offer. [1] : 1068
In late August or early September 1999, eBay requested by telephone that BE cease posting eBay auction listings on its site. [1] : 1062 BE agreed to do so. In October 1999, BE learned that other auction aggregations sites were including information about eBay auctions. [1] : 1062
On November 2, 1999, BE issued a press release indicating that it had resumed including eBay auction listings on its site. On November 9, 1999, eBay sent BE a letter reasserting that BE's activities were unauthorized, insisting that BE cease accessing the eBay site, alleging that BE's activities constituted a trespass of eBay's chattels and offering to license BE's activities. [1] : 1062
As a result, eBay attempted to block BE from accessing the eBay site; by the end of November 1999, eBay had blocked a total of 169 IP addresses it believed BE was using to query eBay's system. [1] : 1062 BE continued crawling eBay's site by using proxy servers to evade eBay's IP address blocks. [3] Information requests sent through such servers cannot easily be traced back to the originating IP Address, which allowed Bidder's Edge to evade eBay's attempts to block queries from the originating IP address. [3] [1] : 1061
eBay sued Bidder's Edge on December 10, 1999, in the Northern District of California federal court. [1] : 1065 eBay moved for a preliminary injunction on the following causes of action:
BE filed antitrust counterclaims on February 7, 2000. [1] : 1073 The counterclaims charged eBay with monopolization, attempted monopolization, unfair business practices and interference with contractual relations. [1] : 1063 On May 24, 2000, District Court Judge Whyte found that eBay had established a sufficient likelihood of prevailing on the trespass claim to support eBay's requested injunctive relief. Because the court found eBay entitled to the relief requested based on its trespass claim, the court did not address the remaining claims. [1] : 1063 The opinion first addressed the merits of the trespass claim, then BE's arguments regarding copyright preemption of the trespass claim, and finally the public interest. [1] : 1063
The court said that eBay's trespass to chattels claim required it to show that:
eBay argued that BE's use was unauthorized and intentional. [1] : 1061 The court said that eBay had not permitted BE's activity simply by having a website available over the Internet. [1] : 1070 BE had violated eBay's terms of use and ignored eBay's requests to stop using its crawlers. BE responded that it was not causing eBay irreparable harm because its activity (80,000–100,000 hits per day) represented only a small fraction (approximately 1 ½ percent) of the overall activity on eBay's site. eBay acknowledged that BE's activity was only a relatively slight interference with eBay's servers. [1] : 1071
Nevertheless, the court found that although BE's interference was not substantial, "any intermeddling with or use of another's personal property" established BE's possessory interference with eBay's chattel. [1] Further, BE's use of eBay's bandwidth and system resources, even though small, harmed eBay because other companies might follow BE's example: "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. If preliminary injunctive relief were denied, and other aggregators began to crawl the eBay site, there appears to be little doubt that the load on eBay's computer system would qualify as a substantial impairment of condition or value." [1] : 1072
The parties argued that the Internet would cease to function if, according to eBay, personal and intellectual property rights were not respected, or, according to BE, if information published on the Internet could not be universally accessed and used. [1] : 1072 The court suspected that the Internet would not only survive but continue to grow and develop regardless of its ruling. [1] : 1072 The court noted that particularly on the limited record available at the preliminary injunction stage, it was unable to determine whether the general public interest factors favored or opposed a preliminary injunction. [1] : 1072
BE also argued that eBay engaged in anticompetitive behavior. [1] : 1072 However, the district court was not obligated to consider the merits of any antitrust counterclaims once it decided that eBay had a likelihood of success on the merits. [1] : 1072
Based on its findings, the court issued a preliminary injunction against BE from "using any automated query program, robot, or similar device to access eBay's computer systems or networks for the purpose of copying any part of eBay's auction database." [1] : 1073
One day after it filed federal antitrust charges against eBay, Bidder's Edge announced it would be acquired by OpenSite, an auction software company. However, the deal fell through when Siebel Systems bought OpenSite. [6]
eBay and Bidder's Edge settled their legal disputes in March 2001. [7] As part of the settlement, Bidder's Edge paid eBay an undisclosed amount and agreed not to access and re-post eBay's auction information. [8] The settlement also required BE to drop its appeal of the preliminary injunction. [9] Meanwhile, Bidder's Edge shut down its website on February 21, 2001. [10]
In 2003, the California Supreme Court implicitly overruled the eBay v. Bidder's Edge opinion in Intel v. Hamidi , a case interpreting California's common law trespass to chattels.
The Hamidi court considered the eBay court analysis, which stated that if BE's activity were allowed to continue unchecked, it would encourage other auction aggregators to engage in similar searching which would cause eBay irreparable harm. In analyzing this point, the Hamidi court stated,"[W]e do not read [eBay decision] as expressing the court's complete view of the issue. In isolation, moreover, [it] would not be a correct statement of California or general American law on this point." As a result, the opinion may be or may no longer be valid precedent.
Further, since eBay was issued, some courts have become more circumspect about the "slippery slope" argument that eBay successfully made about additional crawlers following BE's lead. For example, in White Buffalo Ventures LLC v. University of Texas at Austin, the Fifth Circuit said "Since the spider does not cause physical injury to the chattel, there must be some evidence that the use or utility of the computer (or computer network) being 'spiderized' is adversely affected by the use of the spider. No such evidence is presented here. This court respectfully disagrees with other district courts' finding that mere use of a spider to enter a publicly available web site to gather information, without more, is sufficient to fulfill the harm requirement for trespass to chattels." [11]
A shill, also called a plant or a stooge, is a person who publicly helps or gives credibility to a person or organization without disclosing that they have a close relationship with said person or organization, or have been paid to do so. Shills can carry out their operations in the areas of media, journalism, marketing, politics, sports, confidence games, cryptocurrency, or other business areas. A shill may also act to discredit opponents or critics of the person or organization in which they have a vested interest.
eBay Inc. is an American multinational e-commerce company based in San Jose, California, that allows users to buy or view items via retail sales through online marketplaces and websites in 190 markets worldwide. Sales occur either via online auctions or "buy it now" instant sales, and the company charges commissions to sellers upon sales. eBay was founded by Pierre Omidyar in September 1995. It has 132 million yearly active buyers worldwide and handled $73 billion in transactions in 2023, 48% of which was in the United States. In 2023, the company had a take rate of 13.81%.
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.
An online auction is an auction held over the internet and accessed by internet connected devices. Similar to in-person auctions, online auctions come in a variety of types, with different bidding and selling rules.
Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel. The interference can be any physical contact with the chattel in a quantifiable way, or any dispossession of the chattel. As opposed to the greater wrong of conversion, trespass to chattels is argued to be actionable per se.
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant, and second, that the defendant refused to return the chattel once demanded by the claimant.
Trespass to land is a common law tort or crime that is committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done. In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an injunction to remedy the tort.
Web scraping, web harvesting, or web data extraction is data scraping used for extracting data from websites. Web scraping software may directly access the World Wide Web using the Hypertext Transfer Protocol or a web browser. While web scraping can be done manually by a software user, the term typically refers to automated processes implemented using a bot or web crawler. It is a form of copying in which specific data is gathered and copied from the web, typically into a central local database or spreadsheet, for later retrieval or analysis.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), is a case in which the Supreme Court of the United States unanimously determined that an injunction should not be automatically issued based on a finding of patent infringement, but also that an injunction should not be denied simply on the basis that the plaintiff does not practice the patented invention. Instead, a federal court must still weigh what the Court described as the four-factor test traditionally used to determine if an injunction should be issued.
MercExchange is a technology development and on-line auction company. MercExchange was founded by Thomas G. Woolston in 1995.
Ruby Lane, founded in 1998, is a vintage online retail store based around independent member traders.
The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:
Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (2003), is a decision of the California Supreme Court, authored by Associate Justice Kathryn Werdegar. In Hamidi the California Supreme Court held that a former Intel Corporation employee's e-mails to current Intel employees, despite requests by Intel to stop sending messages, did not constitute trespass of Intel's e-mail system.
Register.com v. Verio, 356 F.3d 393, was a decision of the United States Court of Appeals for the Second Circuit that addressed several issues relevant to Internet law, such as browse wrap licensing, trespass to servers, and enforcement of the policies of the Internet Corporation for Assigned Names and Numbers (ICANN). The decision upheld the ruling of a lower court which prevented a provider of web development services from automatically harvesting publicly available registration data from a domain name registrar's servers for advertising purposes.
In online advertising, contact scraping is the practice of obtaining access to a customer's e-mail account in order to retrieve contact information that is then used for marketing purposes.
CompuServe Inc. v. Cyber Promotions, Inc. was a ruling by the United States District Court for the Southern District of Ohio in 1997 that set an early precedent for granting online service providers the right to prevent commercial enterprises from sending unsolicited email advertising – also known as spam – to its subscribers. It was one of the first cases to apply United States tort law to restrict spamming on computer networks. The court held that Cyber Promotions' intentional use of CompuServe's proprietary servers to send unsolicited email was an actionable trespass to chattels and granted a preliminary injunction preventing the spammer from sending unsolicited advertisements to any email address maintained by CompuServe.
School of Visual Arts v. Diane Kuprewicz, 771 N.Y.S.2d 804 (2003), is a New York Supreme Court case in which it was held that sending and/or directing "large volumes of unsolicited job applications and pornographic e-mails" by defendant to plaintiff if it depletes hard disk space, drains processing power, and negatively impacts other system resources of the plaintiff is sufficient to establish "a cause of action for trespass to chattels." The ruling has been followed and cited in a number of cases in different jurisdictions.
Ticketmaster Corp., et al. v. Tickets.Com, Inc. was a 2000 case by the United States District Court for the Central District of California finding that deep linking did not violate the Copyright Act of 1976 because it did not involve direct copying. The decision permitted Tickets.com to place deep links to Ticketmaster.
America Online, Inc. v. IMS, 24 F. Supp. 2d 548 was one of a series of legal battles America Online launched against junk e-mail. In this case, the court held that defendants' unauthorized mailing of unsolicited bulk e-mail constituted a trespass to chattels under Virginia state law.
hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, was a United States Ninth Circuit case about web scraping. hiQ is a small data analytics company that used automated bots to scrape information from public LinkedIn profiles. LinkedIn used legal means to prevent this. hiQ Labs brought a case against LinkedIn in a district court, seeking an injunction against these means, which was granted. LinkedIn appealed. The 9th Circuit affirmed the district court's preliminary injunction, preventing LinkedIn from denying the plaintiff, hiQ Labs, from accessing LinkedIn's publicly available LinkedIn member profiles. However, after further appeal in another court, hiQ was found to be in breach of LinkedIn's terms, and there was a settlement.