The Case for The Right to Prevent Access Richard Warner

First Claim  The case for the right rests on two claims.  First: Internet systems contain information that, absent a right to prevent access, receives legal protection against appropriation and use by third parties.  Purely factual compilations of data receive no copyright protection, and, absent a right to prevent access, the information can be searched and extracted by others.

Second Claim  Second: it would promote both freedom and efficiency to protect this information by a right to prevent access.  The right promotes freedom by allowing the property owner to decide who can have access to and use his or her property.

Protecting Freedom  If we do not protect the freedom in this way, how will we determine the extent to which Internet system owners have control over their property?  Are we going to invent a new approach?  It is difficult to regulate appropriately when confronted with rapid and revolutionary technological, cultural, and economic change.

The Sensible Course  The sensible course is to start with a model which is relatively well-understood and whose consequences are predictable with some accuracy; and then  adapt the model to the new situations we confront on the Internet.

Promoting Efficiency  A commitment to a free market economy is a commitment to letting market participants decide to what, when, and with whom they buy and sell.  Other things being equal, letting market participants decide is more efficient than taking the decision out of their hands

Efficiency and Property Rights  Property rights play an essential role in placing market decisions in the hands of market participants.  Not only do they define who is entitled to exchange what;  they also enable sellers to control with whom they share business resources and to whom they will sell, as well as where, when and how they do so.

 In the brick-and-mortar world, trespass to land and trespass to chattels provide a business with a broad right to control access to its real and personal property Cullane v. State (282 Ark. 286, 668 S. W. 2d 24 (S. Ct. Ark. 1984)  Why not do so on the Internet?  Let’s look more closely at the need for such protection. Brick-And-Mortar Analogy

The eBay Business Context  eBay’s revenue depends on a network effect.  To see why, ask: why do buyers go to eBay? Because it has the most items for sale. Why is that?  Because most sellers use eBay.  Why? Because most buyers use it.  So...

A Network Effect  So: most buyers and sellers use eBay because most buyers and sellers expect most buyers and sellers to use eBay.  This ensures that most buyers and sellers do in fact continue to use eBay,  which ensures that most buyers and sellers will continue to expect most buyers and sellers to use eBay,  which ensures that...

The Network Effect and Revenue  eBay’s revenue depends on this network effect.  Its revenue comes from primarily from transaction fees charged to sellers.  The fees are relatively small, so eBay has to have a large volume of sales.  eBay’s size matters for this reason, and its size is a function of the network effect.

Bidder’s Edge’s Threat  Bidder’ Edge threatened to undercut eBay’s network effect.  Imagine large numbers of buyers had begun to use Bidder’s Edge in preference to any other site, and imagine you are a seller.  Where should you post your item for sale?

It Does Not Matter  No matter where you put it, buyers will find it on Bidder’s Edge.  Hence, sellers would no longer have a powerful motive to post on eBay.  eBay’s network effect would be undercut.

Defense for eBay?  Should eBay be able to defend itself against this threat?  Surely it should.  Does it already have adequate legal protection?

Computer Fraud and Abuse Act  Does the Computer Fraud and Abuse Act provide the desired protection?  Only if eBay lost at least $5000 as a result of Bidder’s Edge’s activities.  eBay probably lost very little if anything.

What eBay Wants  eBay is looking for an injunction to stop Bidder’s Edge before it causes significant damage.  Compare EF Cultural Travel v. Explorica, where:  There was sufficient damage;  The access was discovered long after it happened.

IP Law Protection?  Trademark violation? No. No trademarked items involved. Compare Oyster Software v. Forms Processing, which involved copying trademarked language in metatags.

Copyright violation?  The data Bidder’s Edge wants is factual information complied in a database, and, under Feist, there is no copyright protection. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).  The situation is the same in Register.com v. Verio and Tickets.com v. Ticketmaster.

Trespass To Chattels  We can provide protection via trespass to chattels. But should we follow eBay or Intel?  eBay: any intentional, unauthorized use of another computer system is trespass.  Intel: intentional, unauthorized use is a trespass only when it sufficiently impairs value or sufficiently harms a relevant interest. Just using computer capacity is not enough.

Looks Like Intel  It looks like we should follow Intel.  What eBay wants to protect itself from is a threat to its business.  In the brick-and-mortar cases, we allow businesses to protect themselves from just such a threat by finding a trespass.  So why not count the business threat as a sufficient harm?

The Problem  We need to develop a systematic view of what counts as a impairment/harm that will provide a principled ground for deciding particular cases.  This is likely to prove very difficult as there will be many different types of impairment and harm.  Why are some impairments and harms sufficient for trespass while others are not?

An Example  Rex owns and runs Real Web Babes (RWB), a web site consisting of a collection of hyperlinks to web pages with pictures of women.  RWB links to resumes containing pictures of women; to personal web sites displaying pictures of vacations; and so on.  Rex catalogues the pictures in terms of attractiveness on a 1 to 10 scale.

Example Continued  He collects the links using automated robot search software which he sends to publicly accessible web sites.  Sally maintains a personal web site on which she displays pictures of her vacations.  Rex links to the site.  Sally is offended, and she notifies Rex that he is not authorized to link to her site.

Trespass?  Rex does not remove the link.  Instead, he posts a message that quotes Sally’s demand that RWB not link to her site, and adds “Don’t let this one tell us what we can and can’t do!” John, a visitor to Rex’s site, reads the posting and uses the link.  Should we regard Sally’s offense a sufficient impairment in value or harm to support a trespass to chattels claim?

How Broad A Right?  Conclusion: an Internet system should have the right to prevent access when there is sufficient harm to the business.  We have not argued that a system owner should be able to turn any access into a trespass simply by informing the other party that such access is no longer authorized.

A Better Alternative  Go back to eBay; count any use of computing capacity as an impairment of value.  To see how to limit the right, recall that trespass to chattels involves intentional, unauthorized access; and, by making an Internet system publicly accessible, the system owner impliedly consents to public access.

Limiting the Right  So: we can limit the right to prevent access by developing a doctrine about when consent is implied, and when it is, and is not, revocable.  We hold that a publicly accessible web site gives implied consent (across a wide range of cases) to receiving , searches by search engines, and to various forms of hyperlinking.  We hold that consent can be revoked in these cases only in exceptional circumstances.