Federal Judge Blocks Web Bot from EBay

BOSTON (05/26/2000) - A federal judge has sided with auction giant eBay Inc. in its lawsuit against auction aggregator Bidder's Edge Inc. U.S District Court Judge Ronald Whyte Wednesday issued an injunction barring Bidders Edge from using an automated system like a Web crawler to search eBay's site for information about its auctions.

The injunction goes into effect June 8.

In a 22-page ruling, Whyte said he granted the injunction on the grounds that searches done by Burlington, Massachusetts-based Bidders Edge slowed, or had the potential to slow, eBay's site. Allowing Bidders Edge to search eBay's database using a so-called software robot could encourage others to do the same thing, the judge noted, and could disrupt eBay's system. A software robot, or "bot," is a computer program that operates across the Internet to perform searching, copying and retrieving functions on Web sites and can execute thousands of instructions per minute.

"Even if (Bidders Edge's) searches use only a small amount of eBay's computer system capacity, Bidders Edge has nonetheless deprived eBay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another's personal property," Whyte wrote in his order.

EBay spokesman Kevin Pursglove said, "The company is grateful that the court listened and affirmed the principle that eBay raised in the beginning, that eBay has the fundamental right to stop unauthorized and harmful access to its site. We look forward to going to court and having the judge hear all the issues we raised."

Whyte didn't preclude Bidders Edge from accessing information from eBay by other means.

In a statement issued yesterday, Bidders Edge said it will appeal the judge's injunction and ask for a stay so it can continue accessing eBay's site using an automated system during the appeal.

"While we are disappointed with this preliminary outcome, it was not unexpected," James Carney, president and CEO of Bidders Edge, said in the statement. "This order relies on law governing trespass on personal property, which we don't believe should be strictly applied to the Internet."

Bidders Edge spokesman Nick Godfrey said his firm is looking for guidance on this issue from the appellate court.

Jonathan Moskin, an intellectual property lawyer at New York law firm Pennie & Edmonds, said the judge's ruling expanding the definition of trespassing on physical property to include the Internet was controversial. Trespass laws on the books in the U.S. apply to physical property, he noted, so applying it online is a significant expansion of such law.

In his order, Whyte denied eBay an injunction based on its allegations that Bidders Edge violated its copyright and trademark rights. EBay sued Bidders Edge in December to stop the Massachusetts company from accessing eBay and then placing eBay product and price information on its own site. In addition, eBay alleged that Bidders Edge engaged in unfair business practices and computer fraud.

The U.S. Department of Justice antitrust division is also looking into eBay's claims that an outside site shouldn't have access to its site.

If the issue is ultimately settled in eBay's favor, it could have broader implications for the openness of the Internet. Bidders Edge and other sites have said that such a decision could have potentially disastrous implications for every search engine on the Web.

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