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Clarifying what constitutes trespassing on the Internet, a California federal judge has blocked Bidder’s Edge Inc. from using its Web crawler to access eBay Inc.’s Internet auction site. Bidder’s Edge, an auction aggregation site, allows consumers to comparison shop online auctions. The company posts items that are available through eBay, as well as other auction sites. When negotiations over a licensing agreement broke down, eBay demanded that Bidder’s Edge stop searching its site. Bidder’s Edge refused, and eBay filed suit seeking a preliminary injunction. In eBay Inc. v. Bidder’s Edge Inc., 99-21200, California Northern District Court Judge Ronald Whyte concluded that eBay is likely to prevail on its trespassing claim. “Under the circumstances present here, BE’s ongoing violation of eBay’s fundamental property right to exclude others from its computer system potentially causes sufficient irreparable harm to support a preliminary injunction,” Whyte wrote. Whyte dismissed the argument by Bidder’s Edge that it cannot “trespass” eBay’s Web site because the site is publicly accessible. “EBay’s servers are private property, conditional access to which eBay grants the public,” Whyte said. Some attorneys are concerned that the ruling could impact the free flow of information over the Internet. Depending on how broadly the ruling is construed, “it means everybody’s got a right to pick and choose who comes to their Web site and for what purposes,” said Mark Lemley, a professor at Boalt Hall School of Law. He said comparison shopping sites will go out of business since “there will always be one party who doesn’t like the idea that a consumer will find out they can get a product for less money.” But more troubling, Lemley added, the decision “makes the whole concept of search engines tenuous.” Under Whyte’s ruling, anyone who is not authorized to come to a site could be deemed a trespasser after the fact, he said. Thus, “anyone who wants to block access to a search engine can do so or give preferential treatment to a search engine.” While not specifically addressing Whyte’s ruling, Daniel Harris, a partner at Brobeck, Phleger & Harrison’s Palo Alto, Calif., office who is representing Tickets.com in a case that poses similar issues, said applying trespass laws to the online community would be a “dangerous precedent.” He distinguished cases involving spam assaults on a server or hackers breaking into a site and carrying out mischief to the activity of search engines. However, eBay attorney Janet Cullum, a partner at Cooley Godward’s Palo Alto office, said Whyte “was careful to point out that Internet search engines are not an issue here.” For Cullum, the ruling establishes the right of Web-based businesses “to control access to and use of their Web sites.” Bidder’s Edge disagrees that using its Web crawler to access eBay’s Web site constitutes electronic trespassing. The company’s attorney, John Cotter, a partner with Boston-based Testa, Hurwitz & Thibeault, said he was “pleased that the court recognized that accessing of eBay’s system has no impact on eBay operations.” However, Whyte’s ruling states that “if BE’s activity is allowed to continue unchecked, it would encourage other auction aggregators to engage in similar recursive searching of the eBay system, such that eBay would suffer irreparable harm from reduced system performance, system unavailability or data losses.” Whyte noted that Bidder’s Edge had accessed eBay’s site approximately 100,000 times a day. Bidder’s Edge plans to appeal Whyte’s decision. A trial date has been set for early in 2001.

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