Illegal Trespassing

Running Head: Illegal Trespassing

 

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Abstract

This paper aims at highlighting the legal rights attached to private property. It puts more emphasis on the property rights that are associated with computer systems. This law protects computer system from being used illegally by people who have no right of ownership. The paper gives the conditions under which linking of websites can amount to trespass. Linking is profitable when done in a lawful way. It can as well cause a lot of damages to both parties when done in an illegal manner.

Illegal Trespass:

According to the law, an action amounts to trespass when it involves interference with private property, which causes the owner to suffer damages. Trespass therefore can be defined as an act that is unlawfully committed on an individual, their possessions, or even their rights. In legal terms, it is commonly referred to as a tort. It is a common practice especially in the case of website linking. This is whereby one sets up a link with another site for the reason of increasing the number of customers using the site. In the case study of “eBay, inc. vs. Bidder’s edge inc.” eBay decides to sue Bidder’s edge for trespass. Bidder’s edge claim that they have the rights to use the site just like the other auctioneers using it (Blair & Cotter, 2001). However, this is not the case, since they are causing eBay some sort of damage. This is explained below.

To answer the first question, bidder’s edge was supposed to sign a licensing agreement with eBay. On the licensing terms, Bidder’s edge was supposed to agree on using eBay’s website only when its system was requested by a user to give information found on that site. This would bring down the load on eBay’s site thus increasing its efficiency. The two failed to agree on the terms of the agreement and so Bidder’s edge went ahead and carried on its activities. When eBay requested Bidder’s edge to terminate its operations on the system, they accepted. Later on, they recommenced since they learnt that the other auctioneers were still using the site. eBay again attempted to stop them by blocking their IP addresses totaling to 169. Bidder’s edge however sustained their operations by the use of proxy servers to avoid the blockage of the IP (Order granting preliminary injunction, 2001).

The licensing agreement offered by eBay required the providers linking with the site to avoid using automated agents. Bidder’s edge however used a robot to access eBay’s system. It is therefore clear that out of Bidder’s edge activities, eBay is bound to suffer from two kinds of harm namely:

“system harm, as a result of Bidder’s edge’s automated query programs burdening its system and reputational harm as a result of Bidder’s edge’s misrepresentations regarding the information that they obtain through the use of automated query programs.”(Jennings, 2006).

Bidder’s edge increased the cost on eBay for maintaining the site and made them to suffer from losses such as slowed system functioning and inaccessibility of the system. This further led to loss of profits on the side of eBay, and gain on Bidder’s edge’s side.

For the second question, traditional trespass to personal property is a tort that is committed intentionally by a party who interferes with another person’s private property without being granted permission. The intrusion may be as petty as just physical access to the property. It may also be serious offences such as transformation or even complete destruction of the property. Trespass has to have led to some sort of damage or injury to the owner. Therefore, for an allegation of trespass to be viable, the following has to be proved: That the owner had not given their approval for the use of the property, the rightful owner suffered some kind of loss due to the trespass and finally, the trespasser intended to do so. Therefore, for a trespass claim to be viable, the court has to prove that the case is fairly represented.

The term traditional trespass is mostly used in the case where the property in question is a tangible property such as trespass to private land or illegal entry into someone’s house. This type of trespass is what has been referred to whenever the word trespass is mentioned. A crime against this offence is usually treated as a criminal offence. This is not so in the case of trespass against intellectual property. Here, the trespasser is charged for a civil offence. This therefore brings the difference between the two types of trespass.

Trespass to computer services is about intruding a person’s computer system without their consent. A system is private property just like any other property. This factor is brought out by the Californian definition, which is about illegalizing and forbidding systems and internet interference without the owners consent. It is out to protect the cyber space using the laws that are being used on traditional cases of trespass. A computer system is private property to the owner and any unauthorized access should be treated as trespass. Computer systems and software are regarded as private property because the intangible property rights protect them.

“It may incorporate content which is lawfully available to the public.” (Simon, 1990).

This puts such properties at risk of duplication and unauthorized use. Therefore, the “California definition of trespass to computer services” is only an extension of the traditional definition to cover computer services, internet materials and other property related to the computer systems. This is important since it gives the owners of these properties the chance to enjoy the benefits that come with providing the public access to the system. This law puts into consideration computer crimes such as computer deception, stealing of information, disturbance of the system, and other computer crimes. It is therefore the duty of the manufacturers of these systems to be aware of the legal rights accorded to them by law so that they will be able to come up with claims whenever their property rights are infringed.

In conclusion, I would say that intrusion into any kind of property amounts to trespass. The Californian law introduced a concept that had been neglected. This is on the need to protect computer systems against unlawful use. When linking websites, it is important to read and understand the terms and agreement of the website’s owner to be on the safe side of the law. It is not illegal to link sites. It only becomes unlawful when it is done behind the owner’s back and it ends up causing them damages. That is what the Californian law on trespass of computer systems is out to protect.

 

 

 

References:

Blair, D. & Cotter, F. (2001). Economic and legal dimensions of rights and remedies. Harlow, UK: FT/Prentice Hall.

Jennings, M. (2006). Business: its legal, Ethical, and Global Environment. Ohio:

Thompson Higher Education.

Order granting preliminary injunction, (2001). United States district court for the northern

district of California publication. Retrieved Sept 2^nd 2010 from http://www.vedderprice.com/publications/bulletin/legal_technology/00_07.asp

Simon, F. (1990). Computer Law Handbook: Software Protection, Contracts, Litigation, Form.

Philadelphia, PA. American Law Institute – American Bar Association.