2002
Comment
*367 INTERNET PROPERTY RIGHTS: E-TRESPASS
John D. Saba, Jr.
I. Introduction
While humanity has survived the "Y2K Bug," the twenty-first century has introduced more than a science fiction author could have ever imagined. So far, the new millennium spacecraft has landed with an army of robots, spiders, deep links, and web crawlers. These science-fiction *368 creatures have already begun to run their course by plundering commercial websites for confidential information and then re-marketing that same information to the original website owner's detriment. Website owners, however, are not throwing their hands in the air and waving white flags. On the contrary, they are setting their phasers to kill, as they engage in the biggest battle yet concerning the new frontier: "property rights in the digital age." [FN1]
The Internet is defined as a super network of computers grouped together to share a host of information. [FN2] However, while familiarity with the Internet is virtually universal, legal solutions dealing with Internet property rights are unclear. [FN3] The recent majority of Internet legal issues are fueled by a lack of these Internet property rights. [FN4] Website owners do not have effective means to exclude unwanted users and are therefore subject to a number of questionable and sometimes hostile Internet practices. [FN5] Two of the more plaguing issues are the practice of deep linking and the intrusion of software robots.
*369 The first method, deep linking, occurs when one website publishes a hypertext link deep in the interior of another website's home page. [FN6] The concept of deep linking is not the same as general linking, where one website provides a general link to one's website. [FN7] Deep linking bypasses a website's home page, which generally contains vital advertising, [FN8] advertising banners [FN9] and other important information, and provides a path deep into the interior of the website. [FN10] Generally, commercial website owners subjected to unwanted deep links complain of significantly diminished advertising revenues due to their lack of control against the practice. [FN11]
*370 The second practice generating problems concerning website property rights is the unauthorized use of Internet software robots. A software robot is a program used by one website to search, copy, and retrieve information from another website. [FN12] Essentially, a web spider is an automated program that communicates across the Internet to index or collect information about another site. These Internet robots operate at lightening speeds, retrieving large amounts of data in seconds, potentially clogging-up network connections to servers and even the server itself. [FN13]
Both unsolicited deep linking and the unauthorized use of software robots beckon the need to establish clear property rights for website owners to ensure that Internet sites are only accessed in the proper manner. [FN14] *371 With the creation of well-defined rights, web owners could essentially control the way their sites are accessed. In so doing, owners of websites and even computers could gain the ability to protect themselves against harmful and unfair Internet practices. [FN15] However, website owners are not waiting for new legal mechanisms. Today, website companies are using any applicable law to battle the effects of deep linking and the unwanted use of software robots. [FN16] For example, Internet website owners have recently resurrected the ancient law of trespass to chattels to protect their property rights. [FN17] Although this may not be the precise legal mechanism to handle electronic claims, the use of the trespass to chattels theory may have at least summoned the need for a more thorough body of law to protect website owners' rights. [FN18]
This Comment discusses the need for specific Internet property rights to battle deep linking and software robots. Part II provides a brief background of the common law concept of trespass to chattels and a brief history of how the tort is utilized to battle electronic trespass. Part III of this Comment contains four subsections. The first subsection analyzes recent case law involving Internet companies' struggle to secure their websites from unauthorized users, thereby demonstrating how trespass to chattels is used to deter the use of unfair deep linking and software robots. The second subsection discusses the views of both proponents and opponents of Internet trespass. Subsection three gives an economic analysis of property rights in the Internet. The final subsection critiques the recent congressional developments purported to solve some of these Internet issues. After discussing the effects of common law theories, Part IV of the Comment proposes a new statute, the e-Trespass Act, which *372 would grant limited property rights to commercial website owners without impeding upon the Internet market place.
II. Background: Formation of Electronic Trespass
A. Trespass to Chattels: "I Haven't Seen You Since the 19th Century!"
Ironically, at the nexus of recent high-technology Internet issues lies the nineteenth century claim of trespass to chattels. [FN19] Trespass to chattels is a tort claim which protects a person's tangible property from being disposed, impaired, or deprived of use by another. [FN20] The trespass to chattels claim is also referred to as conversion's "little brother." [FN21] Originally, trespass to chattels was used to protect one's property from tangible, physical interference. [FN22] However, the tangible interference requirement has changed to allow for less tangible interferences encompassed by Internet technologies. [FN23]
1. Thrifty-Tel, Inc. v. Bezenek
Prior to 1996, few courts engaged in Internet issues. [FN24] However, in 1996, the antiquated law of trespass to chattels was resurrected and introduced into the advancing world of technology. [FN25] In Thrifty-Tel, Inc. v. Bezenek, [FN26] a group of minors hacked into Thrifty-Tel's internal phone system to obtain long-distance access codes. This method of hacking, also known as "phreaking," occurs when an unauthorized individual steals and uses a company's long-distance access code, usually to make long-distance calls. [FN27] Thrifty-Tel immediately learned of the unauthorized *373 electronic intrusion and filed a civil suit against the hacker defendants to recover from their larcenous act. [FN28] Thrifty-Tel sued the defendants alleging three claims, one of which was conversion. [FN29] The lower court awarded Thrifty-Tel approximately $50,000 in damages; the defendants appealed both the conversion cause of action and the amount of damages. [FN30] In a case of first impression, the California Court of Appeals upheld the trial court's ruling for Thrifty-Tel, but substituted the conversion claim with a trespass to chattels claim. [FN31]
The Thrifty-Tel court was one of the first to uphold the theory of "electronic trespass" using the trespass to chattels doctrine. [FN32] In the appellate court's analysis, the prevailing issue was determining which doctrine was more applicable for recovery under a trespass claim: conversion or trespass to chattels. [FN33] Conversion requires that (1) a person own property, (2) the defendant dispossess the owner of that property, and (3) the act results in damage. [FN34] Although Thrifty-Tel originally filed suit against the defendant hackers under conversion, the appellate court recognized a *374 problem with the claim due to the element of tangibility. [FN35] The problem with Thrifty-Tel's original claim concerned the issue of whether telephone access codes are tangible property under the definition of conversion. [FN36] Instead of engaging in a debate of tangibility, the court substituted its own trespass to chattels claim for the original conversion claim. [FN37]
To support the trespass to chattels claim, the court reasoned that although trespass once required strict proof of physical interference, proving such elements is not as strict in the modern trespass doctrine. [FN38] The court reasoned that electronic signals "were sufficiently tangible to support a trespass cause of action." [FN39] The court also relied on other jurisdictions' use of "computer trespass" to battle unauthorized electronic access. [FN40] As a result of the court's amended claim, the defendant was found liable under the trespass to chattels claim. [FN41]
Thrifty-Tel opened the door for trespass to chattels as a cause of action for electronic trespass. [FN42] Although the hackers in Thrifty-Tel used a telephone to dial into plaintiff's internal phone system to obtain restricted access codes, the decision defined the elements of trespass to chattels broadly enough to encompass indirect interference as a form of electronic trespass. [FN43] One need not be a rocket scientist to calculate how fast electronic trespass to chattels will soar to reach planet Internet.
*375 2. CompuServe v. Cyber Promotions
Soon it landed with a bang. The next successful milestone for the trespass to chattels claim surfaced in CompuServe Inc. v. Cyber Promotions, Inc., [FN44] which was decided less than one year after Thrifty-Tel. However, CompuServe involved a small twist: the concept of electronic trespass applied to e-mail. [FN45] CompuServe, an Internet service provider and proprietary network, sells Internet access and other services to consumers. [FN46] Cyber Promotions, Inc., an Internet business marketer, used CompuServe's Internet service to send out mass e-mails, affectionately known as "spam," to a list of CompuServe subscribers. [FN47] The defendant, Cyber Promotions, Inc., continued sending unsolicited bulk e-mail advertisements to CompuServe customers despite warnings. [FN48] Not only did CompuServe warn Cyber Promotions about violating its policy on spaming, but CompuServe also exhausted technical resources trying to prohibit the defendant's transgressions. [FN49] Finally, CompuServe filed a preliminary injunction against Cyber Promotions in federal district court under a trespass to chattels cause of action. [FN50] The federal court granted the injunction and thereby restricted the defendant from electronically using CompuServe's network to send spam to CompuServe customers. [FN51]
The court in CompuServe began its analysis by discussing the interrelation between conversion and trespass to chattels. [FN52] The court stated that while conversion involves interference with the possession of property, a smaller derivative of the claim exists under the trespass to chattels. [FN53] Moreover, the court provided a more indepth analysis of both the definition and application of the tort claim than the Thrifty-Tel court. [FN54] First, *376 the court used the Restatement (Second) of Torts section 217 to define trespass to chattels as the physical intermeddling or using of another's personal property. [FN55] Next, the court turned to the Restatement (Second) of Torts section 218 to determine when trespass to chattels may be invoked. [FN56] Ensuring that it did not depart from the specific language of section 218, the court acknowledged that to sustain an action for trespass to chattels, one's property must be dispossessed or devalued. [FN57]
Applying CompuServe's trespass to chattels claim to the facts of the case was a legal leap for the court. The court extinguished any arguments surrounding the physical contact requirement of the claim by addressing the holding in Thrifty-Tel. [FN58] Accordingly, the court held that electronic signals constitute sufficient physical contacts under a trespass claim; therefore, the defendant's use of e-mail was no different than the indirect *377 electronic interference in Thrifty-Tel. [FN59] Thus, the physical contact requirement was met. [FN60]
The defendant in CompuServe asserted, however, that a trespass to chattels claim was not supported because the defendant's e-mail actions did not dispossess CompuServe of its property. [FN61] Furthermore, the defendant cited case law mandating the requirement of substantial interference in a trespass to chattels claim. [FN62] Although the court seemingly agreed with defendant's argument, it stated that other means exist under the restatement to sustain a trespass claim. [FN63] The court turned to section 218(b), which allows action for "[h]arm to the personal property or diminution of its quality, condition, or value." [FN64] The court determined that the defendant's harmful effects sufficiently devalued the CompuServe network systems to warrant an injunction on the cause of trespass to chattels. [FN65] Additionally, the court reasoned that defendant's actions tarnished CompuServe's goodwill and business reputation. [FN66] Making it clear *378 that the element of damage under a trespass claim may not be limited to physical harm, the court granted CompuServe's preliminary injunction. [FN67]
In less than one year, trespass to chattels was armed and launched at the Internet hostiles. What the court in Thrifty-Tel initialized, CompuServe fine- tuned. Since technological changes occur rapidly, new forms of technology would soon challenge the new defense. [FN68] As technology evolved, so too would trespass to chattels evolve from "Electronic trespass" to "Internet trespass."
III. 21st Century Adaptation: Internet Trespass
A. Common Law Internet Trespass
The years in which Thrifty-Tel and CompuServe were decided, 1996 and 1997, are now, from a technological standpoint, considered medieval. The effects of Internet trespass and trespass to chattels, as applied to the more modern practices of deep linking and Internet robots, can be analyzed through two recent cases surrounding Internet trespass. The first case involves a ticket retailing company, Ticketmaster, and its battle against various deep linkers. The second case involves an Internet auction giant, eBay, and its struggle to free itself against the claws of software robots.
1. Ticketmaster v. Microsoft - The Brewing Battle
A limited number of lawsuits involve the practice of deep linking, primarily due to a lack of a clear cause of action for dot-coms. [FN69] Lack of modern law, however, did not restrain one company from trying to prevent the deep links against it. [FN70] Ticketmaster, a well known ticket distributor, *379 struggled to protect itself from the whimsical "anything goes" Internet attitude of one competitor's behavior. [FN71] The first major dispute involving deep linking occurred in April of 1997 when Ticketmaster filed suit against Microsoft. [FN72] The dispute arose when Microsoft's "Sidewalk," an informational website spotlighting specific upcoming events, provided deep links to the interior pages of Ticketmaster's website. [FN73] Microsoft's deep links devalued Ticketmaster's site and harmed the company by bypassing advertisements and lowering ad page hits, resulting in a reduction of consumers' impulse purchases. [FN74] Ticketmaster, at the time, had a paid agreement with a similar web guide service called CitySearch allowing the deep links. [FN75] What CitySearch was paying for, Microsoft was taking for free. [FN76] Ticketmaster filed suit against Microsoft in federal district *380 court. [FN77] According to Microsoft, deep links were not a violation and were fair in cyberspace, a medium where information is free. [FN78] The case, which was closely watched for legal guidance on deep linking, was settled in February 1999. [FN79] The settlement agreement restricted Microsoft from deep linking to the interior of Ticketmaster's website. [FN80] However, Microsoft could legitimately link to Ticketmaster's initial homepage. [FN81]
*381 2. Ticketmaster v. Tickets.Com - Every e-Man for Himself
No sooner had Ticketmaster resolved one deep linking dispute than it found itself in another predicament. This time, the predator was Tickets.Com, a rival online ticket distributor. In the battle of Ticketmaster v. Tickets.Com, Ticketmaster filed suit in federal district court in California against Tickets.Com for using unsolicited hyperlinks to the interior of Ticketmaster's home page. [FN82] The facts of the case were similar to the dispute involving Microsoft's Sidewalk. [FN83] Tickets.Com provided tickets to specific events via a website. [FN84] In the event that Tickets.Com was not able to provide tickets for a specific event, Tickets.Com posted a link to the interior of Ticketmaster's event page, thereby bypassing the homepage. [FN85]
To preventTickets.Com from allowing customers to deep link through its backdoor, Ticketmaster sued Tickets.Com under ten different causes of action, including the claim of trespass. [FN86] The court, however, dismissed the bulk of those claims, including the trespass action. [FN87] The court stated that "it is hard to see how entering a publicly available website could be called a trespass. . . ." [FN88] The court was obviously not ready to ban deep linking on a trespass claim.
*382 While some tout the Ticketmaster decision as the end of the deep linking dilemma, the controversy is far from over. [FN89] In fact, the Ticketmaster decision may indeed catalyze the deep linking dilemma. [FN90] Web masters are still advised to deep link with caution and be especially cautious with their reasons and motives for doing so. [FN91] The decision appears to not have halted Ticketmaster's efforts to control adversarial deep linkers, [FN92] as the company is expected to post its new linking policies on its website. [FN93] Conversely, several international and domestic cases, although through slightly different legal claims, have granted injunctions against deep linkers. *383[ FN94] This inconsistency only exacerbates the deep linking dilemma, as doubts still plague website owners.
3. eBay v. Bidder's Edge - "Remember the e-Alamo"
Perhaps Ticketmaster was the Internet's Battle of the Alamo. No more than sixty days after Ticketmaster's defeat, commercial website owners rallied for a huge victory in a battle over the unauthorized use of software robots. [FN95] The Northern Californian showdown involved online auction giant eBay against Bidder's Edge (BE), an online auction aggregator and semi-web crawler, for the unauthorized referencing of eBay's auction offerings. [FN96]
*384 The facts of eBay v. Bidder's Edge [FN97] are an example of the classic deal gone bad. [FN98] Initially, eBay entered into an agreement with Bidder's Edge to allow BE's software robot to "crawl" through eBay's website for ninety days. [FN99] BE's software robot was designed to automatically poll the eBay website and index most of eBay's auction products and pricing. [FN100] After the ninety day contract ended, however, eBay and BE failed to reach a licensing agreement. [FN101] EBay gave sufficient notice to BE that further use of any software robot constituted trespass and would not be tolerated. [FN102] At first BE abided by eBay's instructions, but when BE learned that other companies were continuing to loot eBay's website information with their own software robots, BE resumed the crawling. [FN103] In an effort to refute BE's practice, eBay attempted to physically block the defendant from their website, but to no avail. [FN104] After eBay had exhausted all its options, eBay brought action against BE under a claim of trespass to chattels. [FN105]
EBay sought a preliminary injunction against BE in federal district court. [FN106] The court recognized that the genuine issue of law was whether eBay's preliminary injunction could ensue under the concept of trespass to chattels. [FN107] In a most provocative opinion, District Judge Whyte found that BE had committed trespass to chattels. [FN108] As a result of this trespass, BE was restricted from using bots to access the eBay site. [FN109]
*385 In its analysis, the court first discussed the parameters of granting preliminary injunctive relief by administering a two-part test. [FN110] The first test is the "balance of harm" evaluation. [FN111] This evaluation weighs the relative hardships to the parties based on several factors of harm. [FN112] Following this balancing test, the court took the initiative to categorize eBay's alleged factors of harm into two different types: "system harm" and "reputation harm." [FN113] System harm is the type of harm eBay might endure from a defendant's unauthorized use of the software robot. [FN114] Reputational harm is the alleged result of a defendant's actions from misrepresentation of information. [FN115] Shortly after defining reputational harm, however, the court declined to include it in the balance of harm analysis due to eBay's failure to consider it as an underlying claim. [FN116] In doing so, the court calibrated the scales of justice by preparing to weigh eBay's amount of system harm. [FN117]
The court sifted through a detailed list of asserted system harms in proceeding with the balance of harm evaluation. First, eBay argued that the defendant's constant web crawling greatly reduced the network throughput of eBay's servers and network. [FN118] However, eBay's network traffic costs were unsubstantiated, so the court denied the argument. [FN119] *386 The court did find weight in eBay's argument focusing not an actual harm, but on the potential harm that might occur as a result of defendant's actions. [FN120] The court reasoned that if BE was allowed to continue its hostile practices of web crawling, other companies might join in the foray and eventually cause harm to eBay. [FN121] In such a scenario, eBay would suffer irreparable harm from lost profits and customer goodwill. [FN122] Therefore, in considering the balance of harm analysis, the court found that "BE's ongoing violation of eBay's fundamental property right to exclude others from its computer system potentially causes sufficient irreparable harm to support a preliminary injunction." [FN123]
Once the court decided the balance of harm test, the court then turned to the second prong--the likelihood of success analysis. [FN124] The likelihood of success analysis evaluates the strength and substance of a plaintiff's claims. [FN125] The court focused specifically on eBay's trespass to chattels claim in this second prong. [FN126] The court summoned Thrifty-Tel, easily adopting its similarities in defining eBay's claim. [FN127] For eBay to prevail on a trespass to chattels claim, eBay had to establish that BE intentionally, and without authorization, interfered with eBay's computer system, and as a result, damaged their computer system. [FN128] Not surprisingly, BE disagreed with the claim.
*387 In its defense, BE argued that the elements of trespass to chattels could not be met. [FN129] Because the Internet is a publicly accessible medium, BE argued, authorization is not needed to use web crawlers freely without permission. [FN130] Furthermore, BE argued that even if its software robots interfered with a plaintiff's computer systems, the use was minimal, if at all damaging. [FN131]
Nevertheless, the court found the defendant's arguments unconvincing. [FN132] On BE's first claim, the court noted that "eBay's servers are private property" and that plaintiff generally does not permit software crawling. [FN133] Furthermore, the court noted that a trespass claim could be entertained if the defendant exceeded the scope of such consent, as illustrated by the hostile robot queries. [FN134] In this instance, the court reasoned that despite eBay's general prohibition against web crawling, "BE's web crawlers exceeded the scope of any such consent when they began acting like robots by making repeated queries." [FN135]
In a provocative conclusion, Judge Whyte held that BE committed a trespass to eBay's property. [FN136] Judge Whyte concluded that BE caused damage to eBay's personal property, despite the amount of damage actually caused. [FN137] In light of eBay's deprivation, the court held that BE should not be licensed to continue to cause such harm. [FN138] The court noted that to hold otherwise would inadvertently encourage this type of competitive business practice, which collectively could deny eBay use of its own personal property. [FN139]
*388 In eBay, Judge Whyte put one of the first barbed wire fences around a Website plantation. [FN140] This decision only remedies, perhaps temporarily, the stressful build-up of thousands of cyber-cries for help regarding the issue of Internet property rights and the right to exclude unauthorized access. [FN141]
4. Register.com, Inc. v. Verio, Inc. - Codename: "Project Henhouse"
In late 1999, during the course of the great eBay battle, clear across the country, another battle ensued. [FN142] One deceivingly clever Internet company, Verio, Inc., launched an attack codenamed "Project Henhouse" to deploy a software robot designed to access an Internet competitor's user database. [FN143] The unfortunate target of Verio's unfair behavior was Register.com, an Internet domain registrar and Internet service provider. [FN144] Verio gained access to valuable customer information contained in a seemingly secure database. The database compiled domain names bought through Register.com and also included personal contact information. [FN145] To penetrate Register.com's valuable database, Verio programmed a software robot to extract all of the new Internet name registrants. Verio then used the results of automated queries to solicit Register.com's customers with email messages and telephone calls purporting to provide them further Internet services. [FN146] Register.com sued Verio using the trespass *389 to chattels cause of action to save itself from Verio's electronic claws. [FN147]
The Federal District Court for the Southern District of New York was ready to listen to Register.com's assertions. In its analysis, the court used the elements of trespass to chattels, as directed by the Restatement (Second) of Torts, and pieced together by existing case law. [FN148] The federal court essentially made Register.com's fight an easy one. First, the court reasoned that Verio had notice that use of its software robot was unauthorized by Register.com. [FN149] Second, the court ascertained the harm caused by Verio by following other courts' opinions. [FN150] The Register.com court was not reluctant to satisfy the trespass to chattels elements based on very minimum levels of harm, as well as any other potential harm occurring from additional software robots. [FN151] Finally, after sustaining Register.com's claims of trespass to chattels, the court enjoined Verio, determining that Register.com had easily demonstrated the existence of irreparable harm and a likelihood of success on a trespass claim. [FN152] Given the swiftness in granting Register.com's claim, the court demonstrated no reservation in using Internet trespass to protect Internet users.
*390 B. A Closer Look at Each Camp
The Internet community came to a near screeching halt after Judge Whyte handed eBay the keys to a fortress. [FN153] But how does the Internet community view trespass to chattels and its by-product, which grants a personal property right in web servers? Without a doubt, the eBay, Register.com, and Ticketmaster decisions polarized the community. [FN154] People quickly rushed to support their preferred side, either accepting or rejecting the concept of Internet property rights. [FN155] Thus, the common law action of trespass divides the Internet community into three distinct camps: those opposed to trespass to chattels, those in favor of trespass to chattels, and those who believe that trespass to chattels does not go far enough. [FN156]
1. Those Opposed to Internet Trespass
The first of these camps is populated by those opposed to common law trespass to chattels. [FN157] They carry a haunting message that trespass to *391 chattels, as an Internet cause of action, compromises the Internet and its sacred free flow of information. [FN158] As this camp proclaims, the very essence of the Internet is that it allows companies to host and share a wealth of information without barriers, as compared to the more traditional means of commerce. [FN159] The advocates against an Internet trespass claim assert that the threat of trespass to chattels will unnecessarily burden website owners by stifling the net's free information. [FN160] They claim that because of this privatization, value-add Internet website services will suffer from these restrictions, making the consumer worse off. [FN161] These *392 prophecies warn against smothering Internet users with lawsuits, destroying e-commerce, and transforming cyberspace into an e-wasteland. [FN162]
2. Those Who Support Internet Trespass
Countering the opponents of Internet trespass are those in favor of Internet trespass claims and the creation of property rights. [FN163] This camp believes that protection is overdue for website owners who are tired of the unfair competition that accompanies the Internet. [FN164] They claim that since a traditional "brick and mortar" business has every right to prevent a competitor from entering their website and obtaining vital pricing information, so too should the "click and mortar" online business. [FN165] Thus, *393 the concept of Internet trespass fits neatly into the world of cyberspace. [FN166]
3. Those Who Really Support Internet Trespass - The Internet Libertarian
The camp in favor of a cyber trespass to chattels claim also includes an extreme right faction. These property advocates [FN167] feel the trespass to chattels claim does not go far enough, and argue that courts should honor trespass (proper) claims, thereby treating websites as real property. [FN168] *394 They argue that if websites were treated as real property, web owners could better manage and enforce the terms of visiting their site, thus making it even easier to exclude unwanted surfers under a claim of trespass. [FN169] With the boldness of these three camps, there appears to be no middle ground.
C. Economics and the Internet: The Cyber-Coase Theorem
For decades, economists have highly regarded the concept of property rights. [FN170] The Internet should be treated no differently than any other economic study concerning property rights. [FN171] Important economic theories used to study the dynamics of traditional "brick and mortar" businesses should also apply to "click and mortar" businesses.
Perhaps the most important and popular [FN172] of such economic theories concerning property rights and bargaining was founded by Ronald Coase in 1960. [FN173] The theory is better known as the Coase Theorem. [FN174] Coase's *395 revolutionary theory deals with the conflicts arising between two competing businesses and the costs imposed on one another. [FN175] The Coase Theorem is defined in situations where: "if . . . any agreement that is in the mutual benefit of the parties concerned gets made, then any initial definition of property rights leads to an efficient outcome." [FN176] The Coase Theorem is best explained by the most simplistic form of conflicting business practices--pollution. To give a non-Internet example: for every hour Factory A produces steel, it also produces 1000 blobs of pollution, which ultimately damages Rancher B's water supply located on B's property. Naturally, Rancher B is not happy about his polluted water and wants Factory A to pay for it. Coase asserts that given this inherent conflict, the two businesses will bargain to the most efficient outcome, assuming low transaction costs. [FN177] Thus, one possible efficient solution to the above *396 example suggests that if the rancher threatens to enjoin the steel mill from continuing to pollute, the steel mill will respond with an offer to pay the rancher for the continued cost of pollution in producing steel. In short, if one conflicting business partner is allocated a property right, it could lead to natural economic efficiency.
Each of the aforementioned cyber-cases in this Comment have at least one common theme: they all involve conflicting Internet business interests. [FN178] Both Ticketmaster and eBay claim that another company harmed them in the course of business dealings. [FN179] These scenarios are exactly what the Coase Theorem purports to explain. [FN180] If the Coase Theorem is applied to cyberspace, assuming transaction costs are low, either granting a property right in web server, or not, has an overall effect on efficiency. [FN181] Furthermore, if the Coase Theorem application is correct, *397 courts can assign a right to whichever website owner they see fit, and still maintain efficiency. [FN182]
To better understand the application of the Coase Theorem, consider the agreement following the eBay case. [FN183] After the court granted eBay an injunction against Bidder's Edge, ultimately granting a property right in favor of eBay, the two disputing parties actually entered into an agreement for Bidder's Edge to continue to list eBay's auction products on its site, subject to eBay's terms. [FN184] Bidder's Edge got exactly what it had demanded, but only after an agreement with eBay where, although the terms of the agreement are not disclosed, one could reasonably assume that Bidder's Edge would pay a kick-back or small software crawling fee to eBay. [FN185] The Coase Theorem predicts that even though the court gave eBay a property right, the companies still bargained to arrive at the most efficient solution.
If legal rules, such as Internet trespass, are sculpted to grant property rights in websites, the cyberspace market can still reach efficiency, [FN186] assuming *398 low transaction costs. [FN187] In other words, the law can create legal rules to protect website owners' property rights with no cost to economic efficiency!
D. Purposed Congressional Solutions
The common law disputes involving Internet trespass exemplify the need for Congress to take the initiative and address the problems of Internet trespass before the firestorm matures. The common law concept of Internet trespass developing from the battlefields of Northern California should serve as an incentive for Congress to enact a solution to the problem of harmful Internet practices. This solution would entail a federal statue protecting the interests of commercial and private website and computer users. [FN188] Would such a solution be so far fetched?
1. Copyright Protection and Database Misappropriation
Congress has already initiated two bills which aim to solve the problems of Internet trespass, but through a different legal aspect--copyright law. [FN189] Both the Collections of Information Antipiracy Act (CIAA), H.R. 354, and the Consumer and Investor Access to Information Act (CIAIA), H.R. 1858, essentially prevent the pirating of existing *399 online databases. [FN190] However, the bills are somewhat at issue with existing copyright law in attempting to protect that which is not copyright protectable. [FN191] Even if Congress successfully passes the proposals, they would only grant a very narrow sliver of protection for online databases.
Nevertheless, the suggested bills do not go without merit. The fact that legislative committees are working on a federal solution is a very proactive method of providing some recourse for website owners. [FN192] But even more significant are recent scholars, like Maureen O'Rourke, who dedicate time and effort into making suggestions as to how to amend or even reword the proposed bills to encompass recent spidering issues. [FN193] Specifically, O'Rourke suggests that legislatures add a balancing test to the Consumer and Investor Access to Information Act to provide more specific *400 guidance on what is and what is not database misappropriation. [FN194] Although modifications to legislative proposals will provide a reasonable solution to prevent parties from plundering compiled databases, such changes only provide limited protection potentially at the expense of copyright law. [FN195]
Because the Internet war is exploding at a rapid pace with exponentially expanding technologies, constructing or even adopting a statute limited to solely protecting databases provides only a short term solution. [FN196] As personal computers get faster and more efficient, and as personal broadband Internet access fills the users' homes, one could reasonably infer that personal computers will play an even greater role in the next generation of Internet technologies. [FN197] Computer owners will expose even more of their personal assets to the world wide web and will need extra protection from the malicious Internet practices mentioned, as well as those being developed. [FN198] When a person's home personal computer is wrongfully accessed, that person will likely demand recourse. [FN199] Thus, a statute encompassing relief from a form of unwanted trespass, access, or even intrusion needs to stand on its own.
*401 2. The Next Wave of Intrusions? Knock, Knock, We're Already Here:
Trojan Horse and Spy Ware
The possibilities of unlawful access to another's computer web server are endless. To illustrate the demand for a statute aimed at protecting one's right of access, consider the following two examples. The first is based on the assumption that almost every Internet user is familiar with computer viruses, specifically the Trojan horse. One recent Trojan horse, called SubSeven, is a computer program deviously placed on one's computer that gives another hacker complete and total access to one's machine. [FN200] If the SubSeven virus is detected on the computer, it was most likely placed there by means of unlawful access. [FN201] Due to its nature, it is indeed intrusive; thus, one can see the need for civil protection based on an Internet trespass theory. [FN202]
Second, consider another, perhaps equally intrusive, program called spy ware. Spy ware is a computer program placed on a computer to upload specific and unique information about the files and information on a personal computer. [FN203] It too is subtly placed on one's computer, usually by an unsuspecting user. [FN204] Such an intrusion is likely fought best with the trespass to chattels approach. An even better solution, however, is a body of law sculpted to protect against such intrusions.
*402 IV. Conclusion: The e-Trespass Act
Understanding the debates surrounding Internet trespass requires two important realizations. First, the Internet frontier deserves some allocation of rights, as demonstrated by the recent increase in Internet property disputes. As noted above, it appears that congressional solutions to aid in seemly unfair business practices are already being developed. However, it is doubtful that copyright law holds the key to the entire solution.
The second important realization is that the Internet trespass cause of action, although not a bad interim solution, may not, in its pure form, be the best solution. Although those supporting Internet trespass have made convincing public policy arguments for granting property rights, those opposing Internet trespass have also pointed out its problems. Internet trespass, while granting well deserved rights to many website owners, garners too much firepower. Thus, it is up to the legislature to refine this power so that the law is used selectively. Surely the Internet community does not want small family feuds, where e-mail receiver Bob sues e-mail forwarder Jane for sending inappropriate Internet humor under a theory of Internet trespass. [FN205] Internet trespass, therefore, is too broad a claim.
A federal statutory model should be constructed separately from Internet trespass to protect all community users from the real threat of wrongful access. After considering the problems and benefits of using trespass to chattels as a remedy, and noting the problem with property rights, perhaps a better solution is to initially define a liability rule under federal law, as opposed to using a property rule. This would shift the focus from a violation of one's property, to a violation of how that property is accessed. [FN206] The new "e-Trespass Act" would grant recourse for those *403 computers and systems which are improperly accessed. [FN207] The new Act could read as follows:
A person or business entity rightfully in possession of an Internet entity shall have a cause of action against another person or business entity who improperly or covertly accesses and who causes sufficient, harmful electronic network access without proper consent to such access.
"Access" in this manner shall include the unauthorized use of software robots (e.g., spiders, robots, and the like), the unauthorized defiance of a normal network web interface (e.g., harmful deep linking), and unauthorized intentional or knowing, breach or attempted breach, of a reasonable security measure (e.g., hacking and breach of access to transmit spy ware). This shall not include harmless, superficial, directory indexing (e.g., search engines using automated software), traditional web tracking methods (e.g., cookies, and other similarly accepted methods), e-mail transmissions, or traditional linking.
"Sufficient" precludes manual extraction of public information. "Harmful" means any significantly imposed financial burden in commercial dealing, or any security breach which intends to penetrate a non-public region of any network entity.
The e-Trespass Act should also contain some exemptions for maintaining superficial links. The purpose of the exception is to protect traditional search engines such as Yahoo!, [FN208] because search engines are typically no threat to commercial websites. [FN209] Furthermore, superficial links would also include links that place an Internet user at the top of the *404 homepage, far less threatening than deep linking. [FN210] This liability law by no means grants an absolute property right, but rather grants a sliver of a right to protect computers against improper access. [FN211] Notably, the statute hinges on existing case law regarding trespass to chattels and encompasses existing case law surrounding the "harmful" variable. [FN212] For instance, CompuServe has already established the scope of sufficient harm to include tarnishing good will and reputation. [FN213] Likewise, the eBay decision has also increased the breadth of sufficient harm to include any "potential" for harm occurring from harmful Internet practices. [FN214] Although in Ticketmaster, the court was not ready to resolve the issue of deep linking interference, [FN215] the new e-Trespass Act addresses the industry's doubts on linking in general, and protects private users exposing their computers on the Internet, without threatening the basic free flow of information. [FN216]