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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?
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.
People who browse (normally) are not trespassing since they are "authorized" by eBay to access their web pages.
IANAL but I can still remember a bit from my law classes.
"Evil will always triumph over good, because good is dumb." - Dark Helmet (Spaceballs)
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
Actually, I don't know about California law, but in Illinois tresspassing implies that the owner of the private property has advised you that you are on private property, that you are not welcome, and that you are to leave poste-haste.
If this is the case in California, then a browser is welcome on their property without specific permission, until they are asked to leave and then after being asked to leave, any contact with their property is considered tresspassing.
So the point is, if eBay asked a deep indexer (or whatever they're called) to stop indexing and they continued despite that, maybe they have a case.
The more interesting question is: does trespassing law apply to a computer? I'm not physically standing in the computer room or on the computer, right? Hmm... good question. I wonder if I can Sue The Spammers on these grounds!
-- "In order to have power, I must be taken seriously." -Mojo Jojo
On-line auction fundraisers!
Left shift 1 for e-mail...
Well, there was a case before where a US Dictrict Court found that a spammer was probably tresspassing after Compuserve told them not to use its mail servers, but they did it anyway. So, in this case, eBay probably told the indexer to stop, but they didn't. Hence, the trespass on eBay's servers... Of course, the Compuserve case was only a holding to extend a preliminary injunction.
Seems kind of silly. Compuserve somehow convinced the Court that the spammer was causing performance problems by using the servers, and the court noted this. So, maybe it might not hold if the truth of the minimal intrusion is made known.
This also has broader implications for the open, shared information qualilities of the web. Hell, in common law trespass, you don't even have to know that you are "tresspassing" to be guilty of such!
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.
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
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
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.