Beware of Internet Trespass

By ERIC J. SINROD

Wednesday, Feb. 01, 2006

Information technology continues to advance at warp speed, and the law struggles to catch up. When new laws have not yet been enacted to address emerging areas of Internet disputes, courts are called upon to try to use and mold ancient legal theories to achieve high-tech resolution. Trespass is one of the ancient legal theories relied upon more and more by courts that are grappling with Internet cases.

For example, in the very recent case of Thomas Kerrins v. Intermix Media, Inc., a federal court in Los Angeles just held that trespass was a viable legal theory to address the alleged distribution of spyware and adware programs.

As the court noted, spyware and adware track a computer user's online browsing habits for purposes of sending targeted pop-up advertisements to the user. In return for a fee, the distributors assist online marketers place advertisements that use their spyware and adware.

The plaintiff in this case claimed that when he downloaded and installed the defendant's supposedly free games and screen-savers, those programs also surreptitiously installed spyware and adware on his computer that substantially impaired its ability to function. The plaintiff also asserted that the spyware and adware destroyed other software, flooded his screen with pop-up ads, revealed his Internet browsing habits to online marketers, and impeded his computer's performance.

The plaintiff raised various claims, including the ancient claim of trespass to chattels. Traditionally, trespass to chattels refers to the interference with or taking of another's personal property. It now is being applied by the courts to address the improper access to and interference with computers, networks and servers.

In this case, the defendant moved to dismiss the trespass claim, arguing that the plaintiff had not alleged sufficient interference with his computer. The court disagreed, as the showing of interference or harm required is not stringent. Because the plaintiff had asserted that the defendant's spyware and adware damaged his existing software, reduced the efficiency of his computer system, and that the removal of the spyware and adware required the time and expense of a computer specialist, the plaintiff had more than adequately stated his claim.

This is just one recent example of the application of the trespass theory in Cyberspace. eBay was a pioneer in creating a niche for this theory in the world of the Internet. In a case decided in 2000, eBay convinced a federal judge in San Jose that its servers had been trespassed by Bidder's Edge, which maintained an Internet auction aggregation site. Long story short, Bidder's Edge used "spiders" to crawl eBay's servers to obtain auction information it posted on its aggregate auction site. The court held that because the crawling practice placed some minimal burden on eBay's servers, eBay prevailed on its trespass to chattels theory.

The law and technology need to live together, and the trespass theory is proving flexible enough to get the job done for now as information technology continues to advance.


Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is (www.sinrodlaw.com), and he can be reached at ejsinrod@duanemorris.com. To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to ejsinrod@duanemorris.com. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

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