The Case Against eBay

1. The Case Against eBay Richard Warner

2. Critics of Trespass • Mark Lemley contends that the courts failed to grasp the real issue. • Lemley insists that the issue was information. The cases “were really efforts to control the flow of information to or from a site.” • Mark A. Lemley, Place and Cyberspace, 91 Cal. L. Rev. 521, 529 (2003).

3. Critics of Trespass • The courts saw the issue as one of personal property: Does an Internet system owner have the right to control access to the computer equipment? • As a result, the courts “got the cases wrong, creating a general tort of stunning breadth.” • The critics see this tort as leading to seriously adverse consequences.

4. Apocalypse Now? • Dan Hunter warns that the “legal propertization of cyberspace . . . is leading us to a tragedy of the digital anti-commons [a distribution of property rights that imposes such disastrously inefficient restrictions on access].”

5. The Anticommons • He contends that “[r]ecent laws and decisions are creating millions of splintered rights in cyberspace . . . Historians will look back on our time and wonder–when we have seen what the Internet could be–how we could have sat and watched the tragedy of the digital anti-commons unfold.” • Dan Hunter, Cyberspace As Place, 91 Cal. L. Rev. 439, 444 (2003).

6. Virtual Versus Physical • The critics’ arguments rest on a distinction between two aspects of the Internet–the physical Internet, and the virtual Internet. • The physical Internet is comprised of servers, routers, fiber optic cables, phone lines, and other related support equipment housed in a variety of structures worldwide.

7. Two Maps • To contrast the virtual Internet, imagine two maps. • The first depicts the physical Internet. • It plots physical connections among servers, routers, computers, and so on.

8. The Virtual Internet • The second map does not depict a single wire or machine. It maps the virtual Internet. • On this map, Internet systems are not depicted as physical items but as collections of information linked to each other by millions of hyperlinks. • The map also shows the billions of web browsers that end-users employ to follow links and access information, and it traces out the billions of possible e-mail connections among Internet users.

9. The Virtual Internet • Two points are connected in this second map if it is possible for them to exchange information. • The physical Internet map does not display a single one of these possibilities; it just shows wires and machines. • As the difference in the maps makes plain, the two networks are not the same.

10. Realization • The relation between the two is one of realization: the virtual Internet is at all times realized entirely in and by the physical Internet. • Given that the intimate realization relation between the two networks, regulation designed for one network inevitably has an impact on the other.

11. The Danger • The danger is that courts and legislators will fail to appreciate this fact and regulate one network in a way that has an unintended impact on the other. • This is what the critics think happened in the trespass to chattels cases.

12. Unintended Consequences • The courts focus on the fact that one party sends electronic signals over the physical Internet to the other party’s computers, and they take the fundamental question to be whether the property owner has a right to prevent access to its property. • In recognizing a right to prevent access, they create adverse consequences for the virtual Internet.

13. Impact on the Virtual Internet • Such consequences concern the critics because it is the virtual Internet that accounts for “the” Internet’s revolutionary impact. • The virtual Internet is a network of possibilities for communication and information exchange, and it is access to possibilities that has so transformed communication.

14. The Consequences • The growth and vitality of the Internet depend on e-mail communication, hyperlinking, and the search-engine index. • These features thrive on implied-permission access. • Recognizing a right to prevent access reduces implied-permission access and hence threatens the growth and vitality of the Internet.

15. How Great? • The critical question is, how great is the threat? The Critics claim the negative consequences of the impact on no-explicit permission access clearly outweigh the benefits that flow recognizing the right. • Some share Hunter’s apocalyptic vision; others see less serious consequences.

16. Critics Agree • The Critics nonetheless all agree that the negative impact of the right outweighs any benefit the right creates. • The reason is that they think recognizing the right yields virtually no benefit. • Are they right?

17. And If They Are . . . • Should we follow Intel? • We can protect e-mail, linking, and searching by holding that these activities qualify as trespasses only when a sufficient impairment or harm is present. • The more we demand in the way of impairment or harm, the greater the protection.