Ch. 06: Trespass to Chattels

Thrifty-Tel, Inc. v. Bezenek, 54 Cal. Rptr. 2d 468 (Cal. Ct. App. 1996) (affirming judgment that unauthorized access to telephone system constituted trespass to chattels) [an alternate source]

CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Oh. 1997) (granting preliminary injuction on grounds that unsolicited email constituted a trespass to chattels) [an alternate source]

eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) (granting preliminary injunction on defendant's use of automated querying programs to obtain information off of plaintiff's website and over plaintiff's objections) [an alternate source].

Intel Corp. v. Hamidi, 30 Cal.4th 1342, 71 P.3d 296, 1 Cal.Rptr.3d 32 (Cal. 2003) (limiting trespass to chattels under California law to acts physically damaging or functionally interfering with property) [an alternate source (PDF format)]

Notes

1. For the settlement that resolved the CompuServe litigation, see Final Consent Order by Stipulation, Case No. C2-96-1070 (E.D. Pa. May 9, 1997).

2. AOL has found trespass to chattels a particularly useful means of combatting spam. See America On-Line, Inc. v. IMS, 24 F. Supp.2d 548 (E.D. Va. 1998) (following CompuServe and granting summary judgment on trespass to chattels claim); America On-Line, Inc. v. LCGM, Inc., 46 F. Supp.2d 444 (E.D. Va. 1998) (same); America Online v. Prime Data Sys., 1998 U.S. Dist. LEXIS 20226 (E.D. Va. November 20, 1998) (entering default judgment on same grounds).

3. The eBay opinion perhaps proves most interesting--and controversial--for having based the grant of its preliminary injunction on harms hypothetically suffered by plaintiff. "[T]he gravamen of the alleged irreparable harm is that if BE is allowed to continue to crawl the eBay site, it may encourage frequent and unregulated crawling to the point that eBay's system will be irreparably harmed. " 100 F. Supp. 2d at 1067. Granted, the court cited more concrete, though admittedly slight, harms as the basis for recognizing the trespass claim. "Even if, as BE argues, its searches use only a small amount of eBay's computer system capacity, BE has nonetheless deprived eBay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another's personal property. Accordingly, BE's actions appear to have caused injury to eBay and appear likely to continue to cause injury to eBay." Id. at 1071. Nonetheless, the California Supreme Court appears to have approved basing a trespass to chattels claim on the mere threat of harm; the Intel v. Hamidi court saved eBay from criticism by reading it "to find that the defendant's conduct, if widely replicated, would likely impair the functioning of the plaintiff's system . . . ." 30 Cal. 4th 1342, 1357 (emphasis in the original).

4. The eBay opinion proves still more controversial for allowing even very slight use to give rise to a trespass to chattels claim. For an application of that approach, see Oyster Software, Inc. v. Forms Processing, Inc., 2001 WL 1736382, 2001 U.S. Dist. LEXIS 22520 (N.D. Cal. Dec. 6, 2001) (No. C-00-0724 JCS) (not reported), which read eBay to save from summary judgment the claim that copying a website's meta tags could constitute trespass to chattels. "While the eBay decision could be read to require an interference that was more than negligible (as did the court in Ticketmaster), this Court concludes that eBay, in fact, imposes no such requirement. Ultimately, the court in that case concluded that the defendant's conduct was sufficient to establish a cause of action for trespass not because the interference was 'substantial' but simply because the defendant's conduct amounted to 'use' of Plaintiff's computer." 2001 WL 1736382 at *13. See also Register.com, Inc. v. Verio, Inc., 126 F.Supp.2d 238, 251 (S.D.N.Y. 2000) (citing eBay for proposition that any physical interference suffices to give rise to a trespass to chattels claim), affirmed, 356 F.3d 393 (2d Cir. 2004). On this point, Intel v. Hamidi evidently offers a different view.

5. With regard to the question of whether or not U.S. federal copyright law preempts a trespass to chattels claim, the eBay court expressly disagreed with the court in Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 525390, 2000 U.S. Dist. LEXIS 4553, 54 U.S.P.Q.2D (BNA) 1344, Copy. L. Rep. (CCH) P28,059 (C.D. Cal. March 27, 2000) (granting in part and denying in part defendant's motion to dismiss complaint). As the eBay court saw it, "The right to exclude others from using physical personal property is not equivalent to any rights protected by copyright and therefore constitutes an extra element [in the cause of action] that makes trespass qualitatively different from a copyright infringement claim." 100 F. Supp. 2d at 1072. The eBay court also apparently disagreed with Ticketmaster with regard to the relevance of the public availability of a web site to a trespass claim. "[I]t is hard to see how entering a publicly available web site could be called a trespass, since all are invited to enter," reasoned the Ticketmaster court, 2000 WL 525390 at *4, 2000 U.S. Dist. LEXIS 4553 at *11. In contrast, the eBay court did not find it dispositive that plaintiff had allowed the public to access its website. "[Bidder's Edge] argues that it cannot trespass eBay's site because the site is publicly accessible. [Bidder's Edge's] argument is unconvincing. eBay's servers are private property, conditional access to which eBay grants the public." 100 F. Supp. 2d at 1070. At least in part due to the eBay opinion, the Ticketmaster court subsequently withdrew its initial ruling and substituted for it another that recognized the potential validity of a trespass to chattels claim, though finding too little evidence of harm to justify a preliminary injunction. See Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 1887522, 2000 U.S. Dist. LEXIS 12987, Copy. L. Rep. (CCH) P28146 (C.D. Cal., August 10, 2000) (No. CV99-7654-HLH (BQRx))(unpublished opinion), affirmed, 2 Fed. Appx. 741, 2001 WL 51509, 2001 U.S. App. LEXIS 1454 (9th Cir. 2001) (unpublished opinion).
   
   

Useful Resources and Optional Reading

• In a brief analysis very much like that of the court in CompuServe, Inc. v. Cyber Promotions, Inc., the court in Hotmail Corp. v. Van$ Money Pie, 1998 U.S. Dist. LEXIS 10729; 47 U.S.P.Q.2D (BNA) 1020 (N.D. Cal. 1998) (No. C98-20064 JW) (not reported), granted a preliminary injunction on defendants' sending spam via plaintiff's free email service on grounds, in relevant part, that the defendants thereby trespassed on the plaintiff's chattels.
  
  

Dan L. Burk, The Trouble With Trespass, 3 J. SMALL & EMERGING BUS. L. 1 (1998) (arguing that the Thrifty-Tel, CompuServe, and Intel courts misapplied the law of trespass to chattels and advocating that courts instead analyze such cases under the law of nuisance) [an alternate source (PDF format)]

Notes

1. Although Professor Burk offers as a reductio ad adsurdum the observation that the Thrifty-Tel and CompuServecourts interpreted trespass to chattels doctrine so broadly as to perhaps allow claims against unwanted phone calls or faxes, it bears noting that the law already provides relief against unauthorized access in such cases, and does so without engaging in the sort of balancing test common to nuisance claims. See 47 U.S.C.S. § 227(b)(1)(B) (2000) (making it illegal in general to "initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party . . . ."); id. § (b)(1)(C) (making it illegal to send any unsolicited advertisement to a telephone facsimile machine); id. § (b)(3) (providing private right of action for such violations); 47 USCS § 223(a)(1)(D) (2000) (making it illegal to cause, with intent to harass, another's telephone to repeatedly or continuously ring); id. § (a)(1)(E) (making it illegal to repeatedly communicate with a telecommunications device solely to harass the recipient). In fairness to Prof. Burk, however, it bears emphasizing that those are statutory--not common law--rights.

2. Courts have treated harassing phone calls as nuisances under common law. See, e.g., Brillhardt v. Ben Tipp, Inc., 297 P.2d 232, 235 (Wash. 1956) (affirming plaintiff's recovery for personal discomfort and annoyance suffered due to a misprinted telephone number and observing, "The distribution by the appellant of approximately twenty-five thousand sales slips containing the respondent's telephone number resulted in an actual invasion of the respondent's right to enjoy her property without unreasonable interference."); Wiggins v. Moskins Credit Clothing Store, 137 F. Supp. 764, 767 (E.D.S.C. 1956) (motion to dismiss claim denied because "there were repeated calls, despite plaintiff's protests, which amounted to an intrusion into her home and an interference with the peaceful enjoyment thereof."); Sofka v. Thal, 662 S.W.2d 502, 509 (Mo. 1983) (affirming dismissal of claim on grounds that "a nuisance could not be said to occur until the number of calls or their frequency reached a highly offensive or intolerable level."). None of those courts, however, had ocassion to consider a trespass to chattels claim.

3. For commentary about chattels that contrasts with that of Prof. Burk, see I. Trotter Hardy, The Ancient Doctrine of Trespass to Websites, 1996 J. Online L. art. 7, par. 1. Prof. Hardy concludes,

   
   Trespass actions are grounded in the idea of protecting an owner's control over real "property." There is no inherent reason that a Web site could not be considered a species of "property." The institution of property can itself be justified by several different jurisprudential theories . . . . Each of these theories offers surprisingly strong support for treating a Web site as "property," and accordingly, for allowing a common law cause of action for "trespass to Web sites."

   Id. at par. 57.