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E-commerce expert Mark Lemley and McArthur “genius” grant winner Pamela Samuelson are two of the legal academics who submitted an amicus brief to the 9th U.S. Circuit Court of Appeals on behalf of Bidder’s Edge in an intellectual property battle with Internet auction giant eBay. Bidder’s Edge uses an automated system known as a “bot” or “spider” to crawl through the Web sites of eBay and other auction houses, gathering information about items offered for sale and storing it in its own database. EBay calls this trespassing and claims that its copyrighted material is being infringed. In turn, Bidder’s Edge says that eBay is a monopoly and engages in unfair business practices. DOUBLETALK FROM EBAY? Professors Lemley and Samuelson are members of the faculty at the Berkeley Center for Law and Technology at the University of California. They were joined on the brief by 26 other well-known IP law specialists. The brief supports Bidders Edge’s appeal of U.S. District Judge Ronald Whyte’s May 24 injunction barring Bidder’s Edge’s bot from eBay and saying that the small company’s automated system could potentially slow down the entire site. The professors’ brief argued that the ruling could threaten the exchange of information on the Internet and that no actual harm under existing trespass doctrine had been committed. Bidder’s Edge v. eBay, No. 00-15995. EBay countered that the academics do not “have the requisite interest or expertise in Internet technology or economics [that] would make their views meaningful.” What makes this assertion interesting is that eBay contacted Profs. Lemley and Samuelson earlier, trying to enlist their support. EBay is represented in the dispute by Cooley Godward. Cooley partner Janet Collum said that “we wanted to have a chance to explain our views on the case because what we were reading in the press seemed not to encompass eBay’s views.” The conversations with the two professors took place, she said, shortly after Whyte issued his injunction. Collum said that she and eBay Senior Intellectual Property Counsel Jay Monahan decided “it was useful to talk to Samuelson and Lemley to explain why the injunction was appropriate.” She denied that the meeting was an attempt “to solicit any kind of brief from the professors.” Bidder’s Edge, of Burlington, Mass., is represented by Boston’s Testa, Hurwitz & Thibeault. In a 9th Circuit filing in support of the legal academics’ brief, Testa Hurwitz lawyers asked, “[W]hy did these two key eBay representatives spend precious time pitching this tiny audience, an audience which possessed no power to grant eBay any form of relief? “No doubt because they knew what eBay now denies: that Professor Lemley and Professor Samuelson, by virtue of their training and experience, possess a profound understanding of law in technology, and understanding which peers, practitioners, and organizations have recognized and sought out.” And Testa’s lawyers, led by partner John J. Cotter, argued that “eBay’s failure to report its prior contact with the law professors, which is inconsistent with the position it now takes in its opposition, establishes that eBay is playing fast and loose with the Court, and eBay should be sanctioned accordingly.” Meanwhile, University of Chicago Professor Richard A. Epstein has entered the fray in support of eBay, submitting an amicus brief on behalf of Lexis-Nexis parent Reed Elsevier Inc., the National Association of Realtors and the e-commerce Coalition. He argues that the same laws governing trespass to real property should apply to privately owned computer systems such as eBay’s.

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