Originally created 02/11/01

Do Internet robots trespass?



Software robots that automate repetitive tasks on the Internet are redefining the meaning of life online -- and forcing courts to decide whether trespassing laws apply.

Two targets of the so-called bots, eBay Inc. and Register.com Inc., contend the bots are unwanted intruders on private property. The companies have won preliminary injunctions, though the bot owners have appealed.

Proponents say bots use public Web sites no differently from humans; bots are just quicker. In their view, it should make no difference whether a human visits a Web site or delegates a robot to do so.

The court challenges are among the latest attempts to make laws designed for physical property apply to virtual terrain.

"We're still grappling with the question of what's the right analogy and how far you can stretch that analogy until it breaks down," said Walter Effross, a law professor at American University in Washington.

Courts are being asked to clarify what the Internet truly is: A public library where anybody can come in and browse? A private store where owners can restrict whom they let in?

EBay takes the latter view, arguing that all users are bound by terms of service agreements posted at the site, even if they never read such notices. The rules ban bots without special permission.

Bidder's Edge had deployed robots to eBay and other sites to help Internet users view all auction listings at once.

EBay complains that it cannot be sure that Bidder's Edge would give customers complete, accurate and timely listings. Plus, eBay spokesman Kevin Pursglove said, the robots strain eBay's resources and could cause servers to slow down for human customers.

Bidder's Edge Inc. argues that if eBay wants to restrict visitors -- human or machine -- it ought to require passwords.

In the Register.com case, Verio Inc. deployed robots to glean ownership and contact information about various domain names from Register's "Whois" databases.

"Botting our Whois is inherently bad," said Jack Levy, Register's general counsel. "We're not saying that some people can come in and some people can't. We're saying that everybody has to play by a certain set of rules."

As an Internet registration company, Register is required to provide public access to such information, but the company says it has the right to place restrictions on how the information is obtained and used.

Register says Verio violated Register's usage terms not only by using robots, but also by using the data for marketing. The company sued under a series of claims, including trespassing.

Verio refused comment on robots and the trespass theory, saying it was waiting for court guidance.

It's not the first use of trespass to stop Internet activities.

Compuserve Inc., now part of AOL Time Warner, successfully used the principle in 1997 to stop one company from sending junk e-mail. Other service providers followed suit.

More recently, Ticketmaster Corp. cited trespassing, among other claims, to block Tickets.com from "deep-linking" -- reaching one of Ticketmaster's inside Web pages without going through the "front page" area that contains advertising.

A judge refused to grant Ticketmaster a preliminary injunction. Although the court considered the computer "a piece of tangible personal property," it did not find enough harm.

Dan Burk, a University of Minnesota law professor who co-wrote a brief against eBay, worries that more and more companies will use trespassing arguments to try to control their sites, a trend that would challenge the Net's concept as an open collection of networks.

"The new claim of trespass is so broad," Burk said. "As soon as you use my server, and I don't like it, I tell the court it's trespass."

On the Net:

Bidder's Edge: http://www.biddersedge.com

EBay: http://www.ebay.com

Register: http://www.register.com

Burk: http://www.law.umn.edu/FacultyProfiles/DBurk.htm