Slashdot Mirror
eBay Sues Auction-Indexer
Seth Finkelstein writes "According to a story in the Boston Globe, eBay is suing an auction-indexing company. eBay says
its auction data is unique, and legal claims include
'trespassing, copyright infringement, and false advertising.'"
The suit was filed "under a California statute originally written to fight 'cracking'" - I wonder if that's how trespassing got listed as a charge.
Here's a little more background on this lawsuit. In early October, an ABC News story described how the auction-indexer, Bidder's Edge, had taken out a full-page New York Times ad slamming eBay's protective attitude. At that time it decided not to list eBay items. In early November, it changed its mind and, says a ZDNet story, put eBay items back on its site. Thus the lawsuit.
If a specialized search engine for auctions is illegal, aren't all search engines illegal? Disobey the robots.txt file and go to jail?
The 'trespassing' thing is the most interesting; it implies that anyone who accesses the data on the eBay sever is guilty. And supposing it's there for people who are thing of buying; does that mean that browsers (people that browse, I mean) are also guilty?
As for 'false advertising'; that's just bullshit (probably; the Globe doesn't really elucidate).
Jamie wrote:
"If a specialized search engine for auctions is illegal, aren't all search engines illegal? Disobey the robots.txt file and go to jail?"
Well, maybe it *should* be illegal. I suppose that constitutes an unauthorised access of a network, despite explicit instructions through a known standard to stay off of that network.
Still, it's creepy, no?
BTW, eBay has no robots.txt file. That, IMHO, gives them no room to gripe.
I don't think the effects of this lawsuit are quite as far-reaching as it looks. IIRC, EBay has expressly forbidden all search engines to index their pages (I think there even was a story on that here on /. some time ago).
So this company simply did something they knew they were not supposed to. Their fault. But that doesn't mean that if EBay wins, linking will become a crime (ignoring robots.txt maybe, as somebody else has pointed out - at least when you make money with ignoring it).
EagerEyes.org: Visualization and Visual Communication
It is one of the cardinal rules of running a search engine service, with its corresponding spidering efforts that we ensure we comply with the owner's requests regarding examining their site as contained within a Robots.txt file. I work for a search engine company and we certainly make every reasonable effort to do so.
If E-bay has such a file on their system which requests that spiders NOT search their site, then it seems reasonable to say that no-one should index it. If they do not have such a file, then it ought to be open season. Of course, this would exclude them from being listed in regular search engines - but you can't have it both ways.
The most disturbing thing about this to me is the threat that this may affect linking period - as rediculous as it would be to me to say that in order to link to a site you must obtain the site owner's permission - it might not seem so to a US court (who seem capable of making the most patently(every pun intended) absurd decisions where the internet is concerned).
Mind you, threats like this have come and gone before, but I still expect some US judge in some tiny court somewhere to make some pronouncement that threatens the entire Internet - out of ignorance no doubt, but that may not matter.
While the internet should be an international medium of communications, in reality it is a US means of communications and is directly controlled under US laws. As long as this is true, it will continue to be subjected to threats like this. What we need is an international body of law which governs internet communications that acknoledges the rest of the world as being part of the whole picture.
"The first time I got drunk, I got married. The second time I bought a chimpanzee, after that I stayed sober" Arian Seid
They could lose banner money when people do the searches on e-bay, or they can lose to other auction sites. If I could tell you where the cheapest pop in town was, you would go there, wouldn't you? If you went to a random grocery and it was cheap, but you didn't know if it would be cheaper other places, you might get it even though it could possible be more expensive than other places.
Absolutely. I originally worked with someone else and eBay to create a search engine specifically for Auction sites. Unfortunatly, it never got very far off the ground, and work caused me to have to drop the project. But at the time, they were fine with it. I just can't understand why they'd gripe about someone index their items along with other sites to find people the best prices available. It really does seem to bite eBay in the rear if they're saying 'Come to our site, or don't look at us at all!'
I don't know about the rest of the world, but I'm not real happy with this act.
-What have you contributed lately?
See the rough start here
Granted, this lawsuit gives off a very bad smell, but how else is eBay is going to keep surfers on their site and surf pass their ad banners? They've taken the time to set up a site to manage *thousands* of auctions at a time, and then some third party comes along, writes a simple search engine, and tries to get surfers to switch to their site to look at *their* banners.
If eBay thinks hits on their banners are *that* important, they should put more on the pages that describe individual auctions' and deal. What do you all think?
George Lee
I'm not sure how this really threatens ebay financially. They don't have much for banner ads, and I think most of there revenue comes from the charges for listing your product on their pages. How does this "parasite" comapny make money from ebay? Do they have banner ads? Charge people to view the data? The only thing I can think of is banner ads, as it's pretty hard to charge for a limited increase in "information value" (whatever you call it) over something you can get for free somewhere else in a similar form.
Has this ever been ruled upon in the courts before? I don't know of any cases, I'd be interested in any that might have been. What worries me is that ebay seems to think that linking = cracking (cracking being the word they used). If this is all they have to file a lawsuit I don't think they'll win, but you never know. That goes right to the issue of the legality of links we've been seeing the past few weeks. Stories like this support my theory that capitalism is incompatible with the "information age", but thats a whole seperate issue.
Oh boy... the walls that people with the old, traditional commerce mindset bang into when they get on the Internet. Seems that people just don't grok what the h*** the Net's all about. If you look closely at this case, you'll realize that all eBay's trying to do is to create a "business setting" (as in the traditional model of business in the physical world) on the Net. Looks like they don't quite understand what the Net is all about -- information sharing.
Business on the Internet is completely different from business in a physical store. On the Net you can't really sell information -- because information is freely copied and redistributed. What you can do, however, is to publish information that others find helpful. In particular, you can publish information that attracts customers to buy from you. It will be difficult for the goods themselves to be shipped over the Net, because of the nature of electronic information (copy at no cost, almost no-cost of redistribution). If the goods are information itself, you'll definitely run into problems like this, which perhaps shows that the medium isn't exactly suited to your purposes.
If you want to make money on the Internet, you've got to understand that it's simply an information channel, not some bizarre, electronic equivalent of the physical world. You cannot expect to "own" information on the Net. There is no such thing, esp. not on the Net. You use it as an information channel to let people know of your existence, then they come and buy from you. You can't control information on the Net.
mikre he sophia he tou Mikrosophou.
eBay doesn't want competition. These indexing sites index eBay *and* other auction sites. eBay would be happier if you didn't know about other sites, and certainly doesn't want there name to be listed next to any of the "lesser" auction sites.
They want to be number one (and, preferably, the only one). If they weren't already number one, I think they would have a different attitude.
-- Don't Tase me, bro!
I am the sysadmin of a college online community (www.sin.wm.edu) and we've run into interesting issues. We are considering paying for a weather service to give us weather information every 10 odd minutes for us to parse and put into a web page.
:-)
... I believe i have change coming. ;)
This is because our old plan, that is parsing the Weather Channel home page's weather information for our region, has become legally suspect. At least our lawyers tell us so!
This is funny for two reasons:
1. It can't be legally suspect because of content. Please don't tell me the Weather Channel online has copyright to the weather. Weather is by definition public domain and I don't see any copyright infringement from using the information therein. Would you get in trouble for telling someone else what the weather is by word of mouth, without accrediting TWC? Weather is weather!
2. It can't be legally suspect because of implementation. We're not using the Weather Channel's implementation *at all*. Their layout is theirs, and we're just using the (aforementioned, public domain) content. They have an entirely different HTML structure, we actually parse out all the HTML and formatting and use the bare, public do main weather content.
So if it's not the content, and not the implementation, what is it? Why are our lawyers jumpy? It almost sounds as if the Weather Channel would get angry because we dared to rebroadcast the weather data they rebroadcasted from the National Weather Advisory (or whatever the organizational body's name is)... At least in the eyes of our paranoid lawyers. The Weather Channel hasn't bothered.
This leads to another issue. I promised you XML in the title and XML you wil get. XML's entire raison d'etre (reason for existence) is to make parsing of information easier. Yet, if we are to deal with a generation of confused copyright lawyers who aren't sure if parsing is legal or not, what's the point? XML makes content implementation-free, that is to say if I parse, TAG FOR TAG, the information off of the Weather Channel 2000's XML Weather Page, then my implementation and their implementation can be drastically different, but we could have the same DTD's and therefore the same content.
And the content is, unless you are seeing something I'm not, public domain. Please tell me weather is public domain. If it's otherwise, I'm going to kill myself now.
Do DTD's count as content, or implementation, or is it an open standard that is to be used as all (read: "public domain") I'm not sure, but if more incidents occur such as ours, then we should look into:
1. Reconsidering XML
2. Reconsidering what constitutes public domain
3. Firing our lawyers and hiring a younger generation
That's my $0.02
Three Step Plan:
1. Take over the world.
2. Get a lot of cookies.
3. Eat the cookies.
I am a lawyer, but this is not legal advice. If you need advice, contact an attorney licensed in your jurisdiction.
.) covers a trespass with a "thing" caused by the tortfeasor's actions. Even air can qualify as a thing--this was the cause of action used for windows broken by concussion from dynamite blasts and the like.
There is no need for a statute to sue for trespass here--the Common Law has recognized "trespass against chattels" as far back as we have records. Kicking a man's dog could qualify.
The law also does not require personal contact. "Tresspass vi et armis" (sp? haven't used the phrase in ten years . .
Finally, note that this is civil, not criminal trespass. Generally no warning need be given. While trespass requires specific intent, it is the *act* that causes the trespass, not result of the act or the knowledge of ownership by another that matters. If I take a step, believing that I remain on my own property, but actually cross the line into yours, I've committed trespass. OTOH, if I suddenly fall and happen to land on your property, there is no intentional act, and no trespass.
I'm actually surprised at how few of these we see; trespass is trhe obvious cause of action for computer intrusion.
hawk, esq.
If I decided to mine through the /. articles and comments and present their content on my own site for people to search through without ever hitting the slashdot server (or viewing a slashdot ad). I'm sure the recently public Andover.net legal team would be quick to point out the following:
... so who am I to steal that data for my own commercial venture? And don't even start crying "fair use" because it does not come into play in this scenario.
... if this would be a "Your rights online" feature?
... sure, eBay may be handling the PR aspect of this poorly but the simple fact remains ... IT'S THEIR COPYRIGHTED MATERIAL and if they don't want you indexing/mining and re-serving it ... it's their right to ask/force you to stop.
... I contacted them and they promptly removed that option from any page on my site without question. I didn't threaten to sue and they didn't claim any ownership of my content or any "right" to serve it up to their users ... that's how it should work out in almost all cases like this.)
"All trademarks and copyrights on this page are owned by their respective owners. Comments are owned by the Poster. The Rest © 1997-99 Andover.Net. "
That's right, Andover.net owns the copyright on anything that's not already trademarked or copyrighted and not posted by users
I wonder if I were to be sued by the mega-corp Andover.net
My point to all this
(Note: I had a recent "go-round" with Google.com about them serving my entire copyrighted content without my permission via their "cached page" option
On the Net you can't really sell information -- because information is freely copied and redistributed.
I disagree. That's like saying "Because the physical laws of space allows photons to bounce off your work of art, and be received as vision by anyone in the vicinity, or converted into pictures by optomechanical devices, then by displaying it in a public area you lose your copyright". They're foolish for not having a robots.txt file, though, as that could be interpreted as a clear enough "keep out" sign. I look forward with amusement to the contents of robots.txt becoming a legal precedent in a case.
First, IANAL.
In my next post, I will try to list some good "straw man" scenarios for bringing the desired results. Right now, since no one reads postings after the first hour, I encourage others to toss in ideas.
Background: Assuming the current wording of the Constitution re copyright, trademark, patent, etc., notably limited time frames, and the intent to create a situation where the public benefits from creative/inventive work, will suffice to create the interpretation we desire, we need to generate "straw man" cases to ensure that the Constitution is upheld.
"Straw man" suits are situations manufactured specifically to create a case that will test the constitutionality of a law. They were used effectively by Civil Rights advocates to ensure enforcement of the 14th amendment (others please provide references), most famously in Brown v. Board (IIRC), where a special effort was made to enroll a black child in an all-white school in order to create the conflict eventually resolved by the Supreme Court in favor of integration.
Similar "straw man" tactics could aim at recent legislation like Sonny Bono and DMCA, and would also aim to clarify precedents such as fair use and prior restraint as they pertain to the internet.
Possible targets for straw men:
DMCA prior restraint by letters to ISP's for "suspicion" of copyright violation, (previous whistleblower cases effective here, but a good straw man should be able to even stop most ill-advised injunctions)
DMCA fair use restriction by banning "devices" that could be used to copy,
Fair use restriction by likes of eBay, trying to pick and choose who can link their site.
Patent hoarding, plus attempts to enforce overbroad patents
Software licensing that violates fair use by trying to claim licensees have no ownership-like rights
Software patents as not per the intent of patent provisions of Constitution
Attempts to claim databases of public information as copyrighted data (eBay vulnerable here, Westlaw the worst perpetrator)
The monopolization of broadcast channels by a few large providers
etc, etc, etc
Real killer straw men would take down several in one swath, by demonstrating new principles, such as:
Speech that is easily published and accessed deserves at least the same level of protection, perhaps more;
The power/resource imbalance of corporations and institutions vs. individuals is similar to that of the government, and thus even the possibility of unfair restraint on use of IP can be held as prior restraint;
The ability to make high-quality or exact replicas does not equate with intended or actual violation of copyright;
there are probably others...
So, any ideas?
"You can't get something for nothing." - my grandfather, on the stock market and Reaganomics.
I've used ebay, and I've used Bidder's Edge, and I don't believe this is necessarily an assumptions on the matter.
/. headlines on your web page are going to be in BIG trouble...
- Ebay has a database of its auction information
- Ebay dynamically creates web pages to reflect searches that users perform
- The information in Ebay's database is copyrighted by Ebay
- indexing and distributing a portion of a copyrighted database is illegal unless you have the permission of the copyright holder
Bidder's Edge clearly does a search of ebay's databse, probably by using the public interface ebay has provided. They are not merely providing a link to static pages; they are searching a copyrighted database and then providing its users with the results. They are doing this for profit (note the banner ads). I think that ebay has a pretty good basis for a lawsuit.
However, I can't see how Bidder's Edge would be guilty of cracking or trespass. If I provide a public interface to my database, it's hardly trespass if someone uses it. I wonder if they had ordered Bidder's Edge to cease and desist before filing this lawsuit, explicitly denying them from accessing ebay. If so, then I think it's an open and shut case.
And the moral of the story - all you guys out there who have written a script to display
At least he put a GODDAMN subject this time instead of his ersatz ellipses.
,,,
PS. didja notice there's a fake, "Signail 11," who uses commas?
Pope
It doesn't mean much now, it's built for the future.
Here's one point against eBay. There is an accepted method of posting a "No Trespassing" sign for robots, and eBay is NOT USING IT.
http://www.ebay.com/robots.txt
P.S. Be careful, clicking this link may be considereed trespassing!
I think this case is a little more complex than a link to static information would be. Bidder's Edge could be constantly spidering all the changing auctions on e-bay in order to provide their service -- it could cost ebay more than the increase in sales the links create.
Deep-linking to a book on amazon is a completely different issue. Anyone following the link is likely to be interested in buying, and the only time there is a load on amazon's servers is when the potential buyer visits. With spidering the ebay server could be visited many more times than the increased sales would warrant. If many people took BE's position they could almost mount a denial of service attack on ebay. Ebay's hosting costs would rise and sales drop because of server load. Bidder's Edge and their ilk make a buck at ebay's expense.
In addition, sales through bidder's edge would bypass any advertising that ebay targets for people browsing it's sites - this could be an issue even if bidder's edge aren't spidering.
Bidder's Edge could provide their service by running a query on multiple auction sites on behalf of the user. That way there is only a demand on ebay when a potential buyer is interested - both parties should be happy unless they still want to fight over ads. Unfortunately this solution would be slightly slower for a user of Bidder's edge, so they may have chosen to make ebay foot the bill for their service instead of their customers.
+++++
+++++
The harder you look the less you see. That's what we're up against.
> I'm actually surprised at how few of these we see; trespass is trhe obvious cause of action for computer intrusion.
I think the reason is that the internet was designed to be trespassed upon. For example, when I send you email, my message goes across many other servers en route.
It's going to be even harder to argue that eBay has the right to refuse access to the indexer when their website is open to the public. How freely can a company refuse entry to its premises? I know most restaraunts have signs that say that they "reserve the right to refuse anyone", but they really don't have that right. They can't, for example, refuse to serve minorities. To what extent *can* they refuse access?
Can they refuse access to comparison shoppers? I seem to recall a case where Best Buy kicked a comparison shopper out of the store on trespass charges. He was aquited and filed suit against Best Buy. I don't know the outcome of that suit, but the judge clearly felt that he had a right to comparison shop at a public store. That's all the auction indexers are doing?
-- Don't Tase me, bro!
This smacks of a last minute management descision, that they don't want to be indexed by some particular other group, but they didn't know they cared last week.
I think the reason is that the internet was designed to be trespassed upon.
I agree. How can that be legal if the website is open to the public, even if they have a robots.txt file? Copyright laws and the internet simply don't mesh the way they do in other mediums, otherwise the internet loses most of its benefits. If the ability to "link freely" is lost, the internet becomes more one dimentional like television. If you can't find your way to relatively obscure sites, we're going to end up with nothing more than amazon.com and cnn.com.
If anything websites like this increase competition very directly. Of course ebay doesn't like this for that very reason, and I hope the judge realizes that. These websites help in reducing products to a commodity, which is favorable to the consumer, and bad for the corporation. Ebay reminds me of microsoft in this respect, as microsoft tries to hijack (make proprietary) public protocols (tcp/ip, etc) for it's own profit/control.
On another interesting note, there is a webpage www.dealpilot.com that has the same idea but for online booksellers instead. So don't be suprised if we hear about amazon sueing these guys sometime in the near future.
This is a good point. If I write a Perl program to go and fetch a single file off a website (e.g. http://slashdot.org/slashdot.xml), do I have to check the robots.txt file first or risk prosecution?
The robots.txt file is meant to prevent a crawler from going through certain directories and files, and not to prevent access to a single file.
Do you even know anything about perl? -- AC Replying to Tom Christiansen post.
Ridiculous patents, ludicrous lawsuits, pathetic domain challanges, unhelpful licenses, inappropriate trademark infringement claims, prosecutions for mere linking. The whole scene is getting ridiculous, and lots of different parties are being blamed for this nonsense. But I feel that people are missing the point.
In every single instance, the legal profession is first asked for advice, and subsequently it is the legal profession that implements the action. In each of these cases, they gave the wrong advice and implemented the wrong action. This seems to be happening with ever increasing frequency. Why might this be?
Well, I can think of only two possible explanations. The first one is that lawyers are totally clueless. Now, despite every indication that this is the case, I think it is unlikely, merely because the educational requirements are likely to weed out the total morons. The alternative explanation is that lawyers are totally amoral and self-serving, that they see the Internet as a fantastic opportunity for creating new work for themselves, and that they do so with complete disregard for commonsense despite being intelligent enough to know exactly the nature of what they are doing.
Are there any other possible explanations?
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
As for me, I think robots.txt should be used only to prevent abuse of server resources, not to control access to information that a human user would be allowed to access anyway, even if the information comes in the form of a directory tree.
Let's say that I design a proxy server which tries to anticipate the user's future moves and preloads pages referenced by the page that was just requested (and delivered), in order to speed up browsing. I want it to be very careful about how often it bothers a particular server; I'd suggest not retrieving more than one document per minute, and adjusting the pause upwards if the documents are large. It should not go retrieving documents unlikely to be retrieved soon by a human user, say those referenced by pages already preloaded but not yet requested. I don't think it would place enough load on any server to worry about; it may rather diminish the load by serving multiple users. Still, it looks pretty much like a robot to me, and I believe the current robot policy would expect it to obey the robots.txt file. So, if some server disallows all robots, does it mean my proxy will have to turn off cache preloading for that server, or even refuse to connect to that server at all, telling the user to go get those pages himself?
On the other hand, if I have a server generating a theoretically unlimited number of hypertext documents on the fly as the users request them, I don't want a robot to go requesting those pages all by itself, even if it only makes one request per hour, since it may keep doing so for months and years, and I don't want to waste server CPU cycles and disk space to generate and cache obscure pages for the amusement of a machine, especially when I also try to gather statistics on what data the users find most interesting!
By the way, the Ebay lawsuit seems to be about information access and possibly copyright, not server load or skewed server statistics. It doesn't take a robot to access information without permission or violate someone's copyright. I therefore doubt robots.txt is the proper solution in their case.
If eBay (or Ticketmaster, or insert-name-of-company-suing-over-deep-linking) spent half a day writing a routine to have its pageserving routines combine a cookie check with a check for a valid referer URL, they'd be able to block deep linking altogether.
Yes, referers are forgeable, but if you check to see that a referer contains something that, say, matches a user-level cookie, the indexers would be able to index all they want, but they wouldn't be able to link anyone to anything.
The fact is, eBay wants people do deep-link: they want users to be able to send each other links to items, which this would preclude. They just don't want anyone to make a compelling business of it.
Sorry, eBay. Unless you want to start distributing special client software, you're going to have to choose between allowing deep linking for everyone or for no one at all. If the courts fail to see this, there are some judges who need to go back to law school.
Why? simple.. I can go into a shop and write down each and every article they have for my 'guide of useful things and where to buy them'. Thios is perfectly legal even though I am taking up their precious square meters for which they paid a lot of money. Exactly the same as the whole ebay shit. Businesses should stop whining.
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
>The search engine has not 'entered' the server,
Neither did the dynamite in the blasting cases I mentioned. It caused an an action on the property of another, affecting that property. Causing the head in the disk drive to move is more than sufficient to fill the elements of trespass. Moving electrons as bits flip is probably also enough.
> and access has not been granted.
They *took* the access. Yes, the web is set up to allow this, but they had actual notice of lack of permission.
>If eBay want to protect the site then why don't
>they refuse access to redirects from specific >sites or just refuse redirects full stop.
They could do that, though it takes resources to play the cat & mouse game that follows. But they don't have to under current law.