A ruling by a United States federal judge in May sent shudders across sectors of the Internet. it Judge Ronald Whyte ruled the use of automated search programs that collect information from third-party Web sites (sometimes known as "crawlers" or "spiders") could give rise to legal liability for trespass.
The case was an action brought by the operator of auction site www.ebay.com against the operator of another auction site www.biddersedge.com
The eBay site operates on a person-to-person basis where sellers list items for sale and potential buyers are able to search these listings and bid on items.
In contrast, Bidder's Edge is an auction aggregation site that offers buyers the ability to search for items across numerous on- line auction sites without having to search each site individually.
It uses a spider that is able to search, copy and retrieve a vast amount of information on third party Web sites. In processing this data, the spider consumes the processing and storage re- sources of the target host systems which, as a result, makes part of the capacity of these systems unavailable.
Judge Whyte held that Bidder's Edge had diminished the quality or value of eBay's computer systems by consuming at least a portion of eBay's band-width and server capacity, and that this constituted a trespass under Californian law.
In granting a preliminary injunction restraining Bidder's junction restraining Bidder's Edge from using spider programs in this way, the judge indicated that he was concerned that al- though Bidder's Edge's use of spiders did not in itself prevent access to the eBay site, a refusal to grant an injunction could en- courage other auction aggregators to crawl the eBay site. This could significantly affect the eBay site's performance.
This restriction on spiders has far-reaching implications for web site operators which rely on the speedy and efficient collation of data from other sites.
However, the bad news for operators of such sites is that although Judge Whyte's decision was not final, it received approval recently from another US judge (in relation to an application for a preliminary injunction by Ticketmaster against Tickets.com to prevent Tickets.com from using spiders to crawl over the ticketmaster.com Web site).
However, the application for an injunction was refused in this case on the basis that Tickets.com's use of spiders did not give rise to sufficient risk of irreparable damage to Ticketmaster's business to justify the granting of an injunction.
Judge Whyte's decision has the potential to be applied in other countries. Under common-law principles (which also apply in countries such as Britain and Hong Kong), the definition of trespass includes damage to personal property. Accordingly, a Hong Kong court may be prepared to restrain the use of spiders by a Web site operator based in Hong Kong although, as with the Ticketmaster case, much would depend on the potential effect on the plaintiff's site operation.
First published in SCMP Technology post in October 2000.