TOUGH TIMES FOR DATA ROBOTS

January 19, 2001

FEATURES AND COMMENTARY

Carl S. Kaplan reported for the NY Times: Times first got really tough for robots — those automated search programs that periodically crawl through Web sites extracting and copying information — as a result of a controversial decision by a federal district court judge in San Francisco in May 1999. In that case, Judge Ronald M. Whyte relied on the ancient law of trespass to chattels to temporarily ban an Internet company from using a “bot” to invade and copy auction listings from the computer system of eBay, the auction giant.

Now a federal judge in Manhattan has picked up on the trespass idea and altered its requirements a bit, making it even easier for companies to use the law to stop the pesky software critters, some lawyers say.

The upshot, critics of the latest ruling say, is that the easier it becomes to use the law to thwart robots, the easier it becomes for some companies to lock up or selectively protect publicly available information.

“A lot of people are looking for some legal hook” to keep public information on their sites away from competitors, said Dan L. Burk, an expert in Internet law who teaches at the University of Minnesota Law School. He added that he expects to see “an enormous proliferation” of trespass cases against robots in the coming months.

The latest decision concerning software robots came about in a legal batte between Register.com Inc. and Vario Inc.

Register.com is a company that registers Internet domain names for customers. Under agreements with the Internet Corporation for Assigned Names and Numbers, the non-profit corporation known as ICANN that runs cyberspace’s domain name system, all registrars, including Register.com, must provide the public access to an on-line, interactive “Whois” database containing the names and contact information for their domain name customers.

According to legal papers, Vario Inc., a Web site hosting and Internet access company, began using a software robot in 1999 to automatically search Register.com’s customer database for sales leads. Register.com filed a lawsuit last August, claiming that Verio’s use of the automated search robot and its end use of the Whois data was unauthorized and in any case violated its “terms of use,” which prohibit third parties from using the contact-information for mass marketing purposes. The company charged Verio with trespass to chattels, breach of contract and other claims.

Last month, Judge Barbara S. Jones of federal district court in Manhattan issued a preliminary injunction barring Verio from using robots to harvest data from Register.com’s computers for mass marketing purposes. The court found that it was likely Register.com would prevail on its trespass, contract and other claims.

The court’s trespass analysis warrants some scrutiny. Trespass to chattels occurs when there is an intentional and unauthorized interference with the personal property of another that causes the victim to suffer a degree of harm.

How much harm? That’s the key question. In the eBay case, which Judge Jones relied upon, eBay offered evidence that the burden on its computer servers from Bidder’s Edge’s web crawler represented between 1.11 percent and 1.53 percent of the total load. However slight, that degree of interference was harm enough, the judge said, because eBay in effect was prevented from using that portion of its personal property for its own use. The court also reasoned that if it did not grant an order stopping the Bidder’s Edge robot, there would be a green light for other robots from other companies to invade eBay’s servers — risking a crash or substantial impairment of eBay’s computers.

The eBay case is on appeal to the United States Court of Appeals for the Ninth Circuit in San Francisco. Oral arguments are scheduled for next month.

The harm in the New York case was arguably less than that demonstrated in the eBay case. Register.com offered evidence that its computer system’s resources were diminished by about 2.3 percent owing to Verio’s robot. In her opinion, Judge Jones said that the harm estimate was “thoroughly undercut” by Vario in pretrial discovery, however. She added that Register.com’s evidence of harm was “imprecise.” Nevertheless, Judge Jones concluded that Verio’s search robot occupied “some” of Register.com’s system capacity. And because some unmeasured portion of Register.com’s computer property was not available to the company, that was harm enough, she said — especially when combined with the eBay notion that the failure to issue an injunction risks a pile-on from other robots in the wings.

Vario is appealing the ruling to the United States Court of Appeals for the Second Circuit in Manhattan. It has also filed a petition with ICANN to terminate Register.com’s accreditation.

Michael A. Jacobs, a lawyer for Vario, said in an interview that Judge Jones, in effect, said that a showing of present harm was no longer a necessary requirement for trespassing on a computer web site. “In eBay, they showed a 1 or 2 percent” crunch on eBay’s system capacity, he said. In his case, even though Register.com’s allegation of 2 percent “blew up,” he added, “the judge found a sufficient risk of harm. It was literally unprecedented.”

William F. Patry, a lawyer for Register.com, said that it was reasonable for Judge Jones to rule that a sufficient showing of harm was made. “If your property is the computer system and somebody comes in and uses it in a way that violates the terms of use,” he asserted, the owner can say, ” ‘Wait, you’re using my system under conditions that I said you couldn’t.’ ”

It may be true that the particular use “won’t crash my system,” Patry said, but any use of the personal property diminishes the owner’s rights to a degree. He added that it was not “so crazy” for the court to rule that Register.com’s computer response time might be significantly slowed if other companies began to use robots to hammer on Register.com’s database.

Professor Burk, who has written about trespass and the Internet, and who co-wrote a friend-of-the-court brief in the eBay case, said that the trend of the cases seems to be that less and less a showing of harm is required to get an injunction against an unauthorized robot.

Under the reasoning in the Register.com case, “you don’t have to prove harm or show any evidence of harm,” he said. “Harm will be presumed.” He said that he fears the Register.com case will “spread like Kudzu” through the court system.

The neutering of the harm element had important implications, warned Burk. “The way the Net works is by moving electrons around and sharing processing capacity,” he said, adding that trespass to chattels in cyberspace has now been defined “in such a way that everything that goes on in the Net is a possible trespass.”

He added: “If I don’t like your linking to my site, or searching my site, even though it is open to the public, and I say, ‘Stop,’ you have to stop . . . whether you are actually hurting me or not.”

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