Trespass to Chattels
According to the Restatement (Second) of Torts § 217, a trespass to chattel is defined as “intentionally dispossessing another of the chattel or using or intermeddling with a chattel in the possession of another.” The common law form of trespass requires actual harm with intent to harm and physical contact without the plaintiff’s consent. Trespass to chattels "lies where an intentional interference with the possession of personal property has proximately cause injury." Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (1996); see also America Online, Inc. v. IMS, 24 F.Supp.2d 548, 550 (E.D.Va.1998) ("A trespass to chattels occurs when one party intentionally uses or intermeddles with personal property in rightful possession of another without authorization," citing Restatement (Second) of Torts § 217(b)). "One who commits a trespass to a chattel is liable to the possessor of the chattel if the chattel is impaired as to its condition, quality, or value." Id. (quoting Restatement (Second) of Torts § 218(b)).
The Restatement offers the following explanation for the harm requirement:
The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected . . . . Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.Restatement (Second) of Torts
Various state courts have begun to allow trespass to chattel actions when there has been no physical contact in the traditional sense but contact in the form of electronic signals. In order to prevail on a claim for trespass based on accessing a computer system, the plaintiff must establish: (1) defendant intentionally and without authorization interfered with plaintiff's possessory interest in the computer system; and (2) defendant's unauthorized use proximately resulted in damage to plaintiff. See e.g. Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (1996) (holding that an action for trespass to chattels could be maintained against defendants accused of making numerous long distance phone calls in a matter of hours because the electronic signals generated by the calls constituted sufficient tangible contact).
In Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (Cal. 2003), after being fired by Intel, defendant repeatedly sent mass emails to Intel’s employees through Intel’s system, criticizing the company. Intel alleged that by communicating thousands of messages to its employees over the company’s email system Hamidi committed the tort of trespass to chattels. Intel alleged that its technical staff spent time and effort attempting to block the messages, and that some of its employees were upset.
The California Supreme Court rejected the application of the trespass to chattels doctrine to mass emails sent to Intel by former employee where the court found there was no damage to the computer system as a result of the emails. The Court overturned a prior appellate court decision, and ruled that the tort of trespass to chattels did not encompass a mass emailing by a former Intel employee to the company’s system, holding “that under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning.” Id. at 1347.
Thus, the Court held that such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor’s use or possession of, or any other legally protected interest in, the personal property itself. Importantly, however, the court stated that its holding does not affect the legal remedies of Internet service providers (ISPs) against senders of unsolicited commercial email (UCE), and that trespass to chattels may be used where the extraordinary quantity of UCEs impairs the computer system’s functioning. By contrast, in the Hamidi case the claimed injury concerned the disruption or distraction caused to recipients by the contents of the email messages, and therefore did not constitute an injury to possession or value of property.
Prior to the Intel Corp. v. Hamidi ruling, several courts held that under certain circumstances, the transmission of UCE through a computer system constitutes the tort of trespass to chattels. See America Online, Inc. v. LCGM, 46 F. Supp. 2d 444, 451-52 (E.D. Va. 1998); Hotmail Corp. v. Van$ Money Pie, Inc., 1998 U.S. Dist. LEXIS 10729 (N.D. Cal. 1998); CompuServe Inc. v. CyberPromotions, Inc., 962 F. Supp. 1015, 1018 (S.D. Ohio 1997).
In eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000), eBay successfully asserted a trespass claim under California law against an online auction aggregator. The court found that a state law trespass claim was not preempted by the Copyright Act. “In order not to be equivalent, the right under state law must have an extra element that changes the nature of the action so that it is qualitatively different from a copyright infringement claim.” Id. at 1072 (citation omitted). Since a trespass claim is based upon the right to exclude others from using personal property, the court determined that it was not “equivalent” to the rights protected by copyright.
The court in the eBay case relied on the ancient tort of “trespass to chattels,” which is defined as “intentional interference with the possession of personal property [that] proximately cause[s] injury.” Id. at 1069. In order to prevail on a claim for trespass based on accessing a computer system, the plaintiff must establish that: (1) defendant intentionally and without authorization interfered with plaintiff’s possessory interest in the computer system; and (2) defendant’s unauthorized use proximately resulted in damage to plaintiff. Id. at 1069-70 (citing Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (1996)).
The court held that the crawling of eBay’s Web site by Bidder’s Edge was unauthorized because “eBay’s servers are private property, conditional access to which eBay grants the public.” Id. at 1070. The court also held that the crawling constituted unauthorized interference with eBay’s possession of its personal property. Although it acknowledged that eBay was unlikely to be able to show a “substantial” interference, the court held that the tort of trespass to chattels only requires conduct that consists of “intermeddling with or use of another’s personal property,” which need not constitute “substantial” interference.
Finally, the court held that eBay was likely to be able to demonstrate damage–the final element of a trespass to chattels claim–because the crawling by Bidder’s Edge (which consisted of some 80,000 to 100,000 requests to eBay’s computer systems per day) “consume[s] at least a portion of plaintiff’s bandwidth and server capacity … necessarily compromising eBay’s ability to use that capacity for its own purposes.” Id. at 1071.
Other Trespass Cases
- Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000), aff'd 356 F.3d 393 (2ed Cir. 2004). The court held that Register.com was entitled to an injunction to prevent Verio from crawling its Web site. Verio provides, among other things, Web hosting and development services. Verio used a search robot to automatically search on a daily basis Register.com’s publicly accessible database in order to obtain basic contact information for domain name registrants. Verio would then contact the new registrant by phone or email to advertise Verio’s services. The court held that Verio was on notice, through cease and desist letters and the filing of the lawsuit, that Register.com did not consent to Verio’s use of the search robot. Under New York law, because Verio was on notice that Register.com did not consent to its actions, it would be liable to Register.com for any damage to the chattel (defined as Register.com’s computer systems) caused by its unauthorized searches. Register.com submitted a declaration estimating that Verio’s searches resulted in a diminishment of 2.3 percent of Register.com’s system resources. Verio produced evidence to show that amount overestimated its effect on the system. The court concluded that even though Register.com was unable to directly measure the amount by which its systems capacity was reduced, Verio did not dispute that its search robot occupied some of Register.com’s systems capacity. Thus the fact that there was some unspecified impact was enough for the court to grant an injunction.
- Oyster Software, Inc. v. Forms Processing, Inc., 2001 U.S. Dist. LEXIS 22520 (N.D. Cal. 2001). The court denied defendant’s motion for summary judgment on plaintiff’s claim for trespass for defendant’s copying of plaintiff’s meta-tags. Following eBay v. Bidder’s Edge Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000), and distinguishing Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 12987 (C.D. Cal. 2000), aff ’d, 2001 U.S. App. LEXIS 1454 (9th Cir. 2001), the court determined that “defendant’s conduct was sufficient to establish a cause of action for trespass not because the interference [with plaintiff’s computer system] was ‘substantial’ but simply because defendant’s conduct amounted to ‘use’ of Plaintiff’s computer.” Id. at *40, quoting eBay v. Bidder's Edge Inc., 100 F. Supp. 2d at 1070. But see Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (2003) (disapproving Oyster Software’s reading of eBay as dispensing with the “actual injury” requirement under California law).
- Complaint, Homestore.com v. Bargain Network, docket number unavailable (S.D. Cal. Apr. 2002). Plaintiff filed action alleging trespass, among other causes of action, based on defendant’s alleged collection and display of real estate listing information from plaintiff’s Web site for defendant’s own commercial site. Plaintiff also sought an injunction to prevent defendant from deep linking from defendant’s site to detailed real estate listings on plaintiff’s site. In July 2002, the parties reached a settlement whereby Bargain Network agreed to permanently refrain from collecting and displaying real estate information found on plaintiff’s site.
- American Airlines, Inc. v. Farechase, Inc., Case No. 067-194022-02 (Texas, 67th Dist., Mar. 8, 2003). A Texas state court granted American Airlines’ application for temporary injunction against software vendor FareChase on grounds of trespass to chattels and misappropriation. Defendant Farechase allegedly accessed and copied plaintiff’s site, AA.com, for American Airlines flight schedules, seat availability and fare information and sold software that allowed the retrieval of information from AA.com. The court enjoined Farechase from “accessing, using or scraping AA.com information” and from distributing software with those capabilities.
- Ticketmaster Corp. v. Tickets.com, Inc.', 2003 U.S. Dist. LEXIS 6483 (C.D. Cal. 2003). Tickets.com moved for summary judgment against, among other claims, Ticketmaster's trespass to chattels theory. The court found that because no dispossession of the chattel (or Web site) had occurred for a “substantial time” so as to adversely affect the use or utility of the computer, not all elements of the claim had been met.
- Pearl Investments, LCC v. Standard I/O, Inc., 257 F.Supp.2d 326 (D. Me. 2003). Pearl alleged that defendant committed trespass to chattels in accessing and using Pearl's network without authorization. Court assumed arguendo that Chunn accessed Pearl's network without authorization, but granted summary judgment after finding no evidence that in so doing he impaired its condition, quality or value.
- Sotelo v. DirectRevenue, LLC, 384 F.Supp.2d 1219 (N.D. Ill. 2005) Court allowed trespass to chattels claim for spyware under Illinois law based on its interference with plaintiffs use and cummulative injury to computer.
- Inventory Locator Service, LLC v. Partsbase, Inc., 2005 WL 2179185 (W.D.Tenn. 2005) (unpublished) (Florida "does not recognize a cause of action for trespass to chattels in cyberspace.").