The Internet: Place, Property, or Thing - All or None of the Above? Featuring: George H. Fibbe, E. Alan Arnold, and Jennifer Stisa Granick With David Hricik, as Moderator

• Jurisdiction: United States,Federal
• Publication year: 2004
• Citation: Vol. 55 No. 3

The Internet: Place, Property, or Thing—All or None of the Above?

October 30, 2003

Afternoon Session

PROFESSOR HRICIK: For those of you who were here this morning, welcome back. For the people who are joining us for the first time, you really missed an amazing discussion about some very cutting edge issues, and we are about to take that even further. We will look at scraping, and we will learn what scraping means in a few moments, but it is a kind of trespass for those of you who remember trespass from property class.

We have three speakers this afternoon. One is running a little late getting back from the luncheon. Our first speaker will be George Fibbe, who is an associate with the Houston law firm of Yetter and Warden. I actually know George personally. He has the phone number that I used to have when I was at Yetter and Warden. He took over my phone number.

Mr. Fibbe has been involved in a lot of complex commercial litigation, including a recent case styled FareChase, Inc. v. American Airlines, Inc.,¹ in which he represented American Airlines. In that case, a Texas Court issued a temporary injunction against a scraper. I am sure we will hear more about that later.

Our second speaker is going to be E. Alan Arnold. He is a senior attorney with Delta Airlines Legal Department. He is responsible at Delta for intellectual property, technology, E-commerce, and other complex transactions.

Finally, our last speaker is Jennifer Granick, who joins us all the way from Palo Alto, California. She is a lecturer in law and Executive Director of the Center for Internet in Society. She is nationally recognized for her expertise in Internet issues, including computer crime, national security, constitutional rights, and electronic surveillance.

I will get out of the way. Thank you for coming.

MR. FIBBE: Good afternoon. First I would like to thank the Mercer Law Review for inviting me and for the Symposium.

When I first heard the title of the Symposium, "The Internet: Place, Property or Thing, All or None of the Above?," I was reminded of the scene from the movie Field of Dreams in which Shoeless Joe Jackson looks out over the cornfield and says, "Is this heaven?," and the response is, "No, it's Iowa." I think the debate over cyberspace is similar to that. If we think about it broadly in terms of, "Is this cyberspace?" as opposed to if we think of it narrowly, "No, it is just a bunch of computers networked together," then there are important legal consequences, important consequences for the law. And nowhere are these consequences more important right now than with the issue of trespass, and, in particular, the issue of what is called screen scraping.

A number of commentators have argued that this cyberspace-as-place metaphor has driven courts down the wrong path to bad results. A lot of the criticisms focus on the public policy implications of these decisions and of the metaphor itself. It is unlikely though that courts are following this metaphor, letting this cyberspace-as-place metaphor drive them to results dramatically different from where they would arrive otherwise. There is still a lot of room both in the unsettled law of trespass and trespass-to-chattels and in the different metaphors and analogies that are available for courts to reach differing results. So it may be more likely that judicial decisions are driven by a much more commonplace balancing of the interests involved in individual cases. Specifically, it seems that courts are much more willing to enjoin cybertrespass when there is evidence that the trespass creates a very serious commercial harm.

I think the recent California Supreme Court case of Intel Corp. v. Hamidi² is an example of this. Intel went against this willingness to enjoin cybertrespasses. In fact, the Intel majority criticized the dissent for using certain analogies. Some may argue that the Intel court just avoided the confusion of metaphor, but in terms of the interests that were at stake in that case, Intel was very different from most screen scraping cases. In particular, Intel did not pose the type of serious business harm, serious commercial harm, that typically leads courts to enjoin cybertrespasses.

First I plan on giving a little background on screen scraping as an issue. Generally website owners invite broad access to their websites, and this is especially true of E-commerce businesses that invest millions of dollars in their computer infrastructure, in doing business on the Internet, and particularly in distributing their products on the Internet. However, in some circumstances certain access can be harmful. It can be harmful to the computer infrastructure or it can be harmful to the company's business purposes, its business strategy, or how it wants to distribute its product. So some website owners object to the use of robotic devices in general, or any access to their website for the commercial purposes of someone else.

Disputes over screen scraping, which is also called data aggregation or indexing, tend to be between business actors, and they tend to involve commercial access of a website for profit and to the commercial detriment of the website owner.

So website owners try many different ways to protect their websites from this aggregation or screen scraping. They can post essentially electronic "No Trespassing" signs (or robot exclusion headers), or they can try to block the access of the screen scrapers to the website. That method is usually ineffective because the screen scrapers can mask their IP addresses and get around the blocking that is available right now. Also, website owners often will post website use agreements. We have all seen these on websites—the terms and conditions or user agreements that would prohibit robotic access or access for commercial purposes.

I think the basic issue in these cases is whether the website owner should have the right to exclude the unauthorized access. The various interests that are usually involved are these: Broadly speaking, the website owners argue that the courts should protect their private property interests, and the screen scrapers contend that barring their access tends to stifle the free flow of information over the Internet. Website owners have a variety of causes of action at their disposal, but the one that has really gotten the most attention in the literature has been trespass-to-chattels.

Jennifer spoke in the previous session about the history of where this trespass tort came from, or the recent history of it in particular, so I will skim through these cases. The first resurrection of the trespass-to-chattels tort occurred in the California case of Thrifty-Tel, Inc. v.

Bezenek.³ That case concerned phone phreakers who were trying to get authorization codes to make long distance calls for free. The next application of trespass-to-chattels was a case called CompuServe, Inc. v. Cyber Promotions, Inc.,⁴ which concerned an Internet service provider suing a spammer. Pete talked at great length about Internet service providers earlier so I will not dwell on that case so much.

PROFESSOR HRICIK: It was not the length, it was the passion.

MR. FIBBE: The passion, exactly. If you missed it, you missed a very passionate presentation.

When we get to the screen scraping, there are a handful of cases out there. The first major screen scraping case was called EF Cultural Travel BV v. Explorica, Inc.⁵ That case was not decided based on trespass; it was actually based on the Federal Computer Fraud and Abuse Act.⁶ The court found that the screen scraper's access was unauthorized and enjoined that activity. Explorica had set up a program to scrape EF's tour prices from its website, and then Explorica would systematically undercut EF's prices.

The first major application of trespass was the case that Jennifer spoke about earlier called eBay, Inc. v. Bidder's Edge, Inc.⁷ That case concerned the famous auction site, eBay, that we all know. eBay could not come to terms with a screen scraper, data aggregator, called Bidder's Edge, as to the licensing agreement that would allow Bidder's Edge to list eBay's auctions on its site. There was some experimentation, and when that broke down, the dispute arose because Bidder's Edge continued, or they stopped for a while, and then they came back and started to take and scrape eBay's website again.

The case is a fascinating case with a number of very interesting facts, but briefly, from the angle of commercial harm, the court recognized that eBay had a property interest in its server capacity. The court also recognized that the scraping threatened eBay's business reputation. One of the most interesting parts of the case is that the court issued an injunction based not only on the scraping that Bidder's Edge was doing, but the court determined that without an injunction there was a threat that many other scrapers would join the threat and would also scrape eBay's website. That discussion was one of the more controversial portions of that opinion.

Shortly after eBay was a case called Ticketmaster Corp. v. Tickets.com, Inc.,⁸ in which the court refused to grant a temporary injunction against Tickets.com. Tickets.com would scrape data from Ticketmaster and then it would route Tickets.com users to particular Ticketmaster event pages if Tickets.com did not sell tickets to that event.

The court in that case was much more concerned about the information itself than it was about the way Tickets.com accessed the information. Ticketmaster did not really provide evidence of a threat to its computer system or that there was the danger that without an injunction, a lot more scrapers would join in the party. Essentially, I believe that the court did not see an immediate and substantial commercial threat to Ticketmaster by what Tickets.com was doing.

Very quickly, the next case is Register.com, Inc. v. Verio, Inc.,⁹ which concerned a company, Register.com, that would register domain names. When someone registered for...