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>Whyte dismissed the argument by Bidder's Edge that it cannot "trespass"
>eBay's Web site because the site is publicly accessible. "EBay's servers
>are private property, conditional access to which eBay grants the public,"
>Whyte said.
Another point of view is possible - under CA law, intellectual property exists independently of the medium on which it is recorded (in this case, the server) - which means that the ownership of the medium does not mean ownership of information it contains. This decison was made in a case during 1940s that involved a dispute between a movie studio and a screenwriter over the text produced by the latter; the studio claimed ownership of the text because their supplied the medium in which it was recorded. The court disagreed.
I recall the details of this case because I successfully used it to defend myself against a video rental company that wanted to charge me the full cost of a video that was accidentally destroyed. I argued that the cost of the video (ca. $100) includeds a licence to use copy-righted material, which was not destroyed, and the cost of the medium (i.e. the tape that was destroyed) - for which I offered to pay its fair market value ca $3.
Following that logic, Ebay may prevent others from using its server (which is its private property) but cannot restrict the use of information it publicly posted on that server. That is, if Bidder's Edge (or its agents) read off information posted on Ebay just as any other client does, stores that information on its server, and then makes the stored information available to third party, no tresspassing takes place, because Ebay's server is not used in the transmission of information to those third parties.
Besides, Ebay seems to shoot itself in the foot, since it often features product information that is either verbatim copied off manufacturers' sites, or contains direct links to those sites. Under this ruling, such practices are illegal.
wojtek