On Fri, 26 May 2000, Wojtek Sokolowski wrote:
> >themselves. People have an odd habit of saying, "eBay's trying to sell
> someone's kidney"
> >when in fact it's some guy in California or wherever who posted it for sale.
>
> True. But in the light of the court decision that Ebay just won, Ebay owns
> the server and thus should be liable for what is being posted there. It is
> like someone breaking a leg while shopping at a supermarket - the owner of
> the property is liable. The point I was trying to make is that you cannot
> have your cake and eat it - if you treat your site as private property and
> claim proprietary privileges, you must also assume responsibilities that
> come with it.
A nice point Wojtek. It will be interesting to see whether this kind of win ends up being a pyrric victory, or whether some of the other online sites without the same proprietary information come out against EBay on this case precisely for fear of broader liability.
The only thing EBay has going for it in this case, in my opinion, is less the "trespass" on its site than its argument that a web crawler imposes economic costs that may interfere with other customers use of the service. Free speech does have limits if you are essentially electronically "blocking the door" through such excessive access.
In a sense, the "denial of service" massive access of public web sites that block anyone else from getting to the sites could be the model for a fair restraint on rival access to EBay.
In that case, if courts looked at actual economic burdens and undermining of the service, that would pose much less of a free speech threat or precedent. The court decision sort of touched on that, but the whole "trespass" language is very dangerous.
-- Nathan Newman