The legal battle began in late 1999 when eBay demanded that Bidder’s Edge stop accessing its site with shop bots - automated robots which access auction sites hundreds of times a day. Bidder’s Edge used the information to provide shoppers with access to items offered for sale on many different auction sites. eBay wanted to stop the re-publication of information about items for sale on its site, because Bidder’s Edge allowed purchasers to review the information without seeing advertising on the original eBay site. Loss of these eyeballs could eventually deprive eBay of ad revenues.
In seeking a preliminary injunction, eBay raised a host of complaints, including unfair competition, trademark infringement, copyright infringement and unfair trade practices. The winning argument, however, was a surprise: District Judge Ronald Whyte in San Jose found that unauthorized access of eBay’s servers by the Bidder’s Edge shop bots was trespass. Because this unauthorized access deprived eBay of use of at least a portion of its server capacity, it was enjoined by the court. In response to the defendant’s argument that the site was publicly accessible, the court pointed out that eBay notifies automated visitors that their access is not permitted. Further, the court found that the repeated access of a webcrawler is beyond the consent given for public access for normal use of the site.
The case is now on appeal to the Ninth Circuit. Interestingly, several academics have filed friend-of-the-court briefs on both sides of the trespass issue. Some argue that the ruling could undermine the operation of the Web, while others claim that the trespass theory is a legitimate protection for Internet commerce.
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