With the move of information online,
accessible by hyperlink, disputes have arisen over the propriety
of linking or accessing others' web sites. In this section we'll
consider the law of linking and framing, and discuss the various
legal theories that have been used to try to control unwanted linking
behavior on the 'net.
The Origins and Scope of the Controversies
The
Dilbert "Hack Page" Controversey.
Brooke
Shelby Biggs, Newspapers Struggle with Online Archives,
Wired News, Feb 25 1997
Polly
Sprenger, Music Licenser Shakes Down Web, Wired News, Jul.
1, 1999
Alistair
Frasier, The Bozo Filter (one technical solution)
The Cases
Ticketmaster
v Tickets.com, 2000 U.S. Dist. LEXIS 12987 (C.D. Cal 2000)
[pdf, 24 kb, edited]
eBay
v Bidder's Edge, 100 F. Supp 2d 1058 (N.D. Cal. 2000)
[pdf, 48 kb, edited]
Register.com,
Inc. v Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 200).
[pdf, 36 kb, edited]
The Commentary
In June 2000, 28 "high tech"
law professors submitted a brief in favor of Bidder's Edge to the
9th Circuit, which was then hearing the appeal of the eBay v
Bidder's Edge case (the case later settled). In relevant part,
the professors noted:
We submit this brief out of concern that
the district court’s decision represents an unwarranted and
dangerous extension of the ancient doctrine of trespass to chattels
to control the flow of information on the Internet. The
doctrine of trespass to chattels is not designed to and should
not be extended to give one company ownership of information about
the price of a commercial product sold on the open market, as
the district court’s decision would effectively do.
The public interest in this case weighs overwhelmingly against
the grant of an injunction. We argue first that the district
court’s ruling threatens the efficient exchange of price
information on the Internet, and also that the court’s rationale
sweeps so broadly as to endanger many of the most fundamental
activities on which the Internet and electronic commerce are based.
Second, we argue that the district court erroneously substituted
speculation about possible future harm for the evidence of actual
harm that trespass to chattel law requires.
In particular, the professors noted
the following concerns:
1. Allowing the trespass claim will reduce
competition. That is, the ability for web server operators to
prevent the use and spread of their information (specifically
pricing information) will reduce the competition for goods online,
thereby reaising costs to eCommerce participants.
2. Allowing the trespass claim will make
search engines and linking illegal. If web sites operators can
choose who can (and cannot) link to them, search engines may likely
be destroyed. Additionally, this ability to block links will affect
free expression, as site operators can choose to stop links from
those with messages they dislike.
3. Allowing the trespass claim grants a
quasi-IP right. The information that eBay was trying to protect
is not copyrightable, but the decision nonetheless offers legal
protection. This new IP right is ill-considered and lacks the
balance inherent in statutory IP rights.
The Excercise
Again, the class will break into
six groups:
Group A: contains members of Groups 1, 2
Group B: contains member of Groups 3, 4
Group C: contains members of Groups 5, 6
Group D: contains members of Groups 7, 8
Group E: contains members of Groups 9, 10
Group F: contains members of Groups 11,
12
The groups will have time during
class to meet and consider the following problem:
A major client of your firm is Yahoo!,
which is -- as you know -- one of the largest providers of web services.
As such, the company has thosands of servers located throughout
the world. The General Counsel at Yahoo! forwards you the following
news article, asking you to provide him with a plan of action to
address this:
Reuters,
Researchers Plant Parasites Inside Servers,
CNET News.com, August 29, 2001
In particular, the general counsel
wants answers to the following questions:
1. Is there a legal cause of action that Yahoo!
could use to prevent this?
2. What theory would this support this claim?
(i.e., contract, copyright, trademark, trespass, etc.)
3. What arguments would you make?
4. Is Yahoo! likely to win?
5. As a policy matter, should Yahoo! lobby the
Federal Government for a federal anti-cybertresspass statute?
What should it look like?
Come to class ready to discuss
and debate these questions (and the larger topic) in detail.
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