Is virtual trespass an apt analogy?

Communications of the ACM

Volumn 44, Issue 2, 2001, Pages 98-102

  O'Rourke, Maureen A ^a  

^a NONE

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EID: 0041837175     PISSN: 00010782     EISSN: None     Source Type: Journal    
DOI: 10.1145/359205.359238     Document Type: Article

References (9)

1. See, for example, Whelan Assoc., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1236 (3d Cir. 1986) (holding that the unprotected idea of a computer program is its overall purpose, and that all parts of the program's structure not necessary to the implementation of the idea are protected by copyright).
2. See, for example, Computer Associates Int'l Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) (rejecting the Whelan case's holding and adopting a three-part test for separating unprotected ideas from copyright-protected expression).
3. Parties set advertising rates in a number of ways. They may base the rate on the number of users seeing the ad, the number clicking-through to the sponsor's site, or the number clicking-through and purchasing something from the sponsor's site.
4. See, for example, eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1063 (N.D. Cal. 2000) (noting estimates that the Bidder's Edge spider used less than 2% of eBay's system capacity). The eBay court nevertheless preliminarily enjoined Bidder's Edge's use of a spider, holding that any unwanted access deprives eBay of some of its capacity, and that eBay could be damaged if many other firms began to use spiders to search its site. See id. at 1071-72. For a criticism of the eBay opinion, see Bidder's Edge, Inc. v. eBay, Inc., No. 00-15995, Brief of Amici Curiae in Support of Bidder's Edge, Inc., Appellant, Supporting Reversal (9th Cir. filed June 22, 2000).
5. See, for example, Compuserve, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997).
6. For a deeper discussion of this topic, see Burk, D. The trouble with trespass. J. Sm. Emerg. Bus. L. 4 (2000), 27-56.
7. A state law civil cause of action in trespass is unlikely to implicate First Amendment rights because the state's involvement does not rise to the level required to trigger constitutional protections. Nevertheless, the policy interests that the First Amendment represents should inform the design of property rights on the Web.
8. 17 U.S.C. ß 1201 (a) (1999).
9. Id.