eBay Sues Auction-Indexer 127
Seth Finkelstein writes "According to a story in the Boston Globe, eBay is suing an auction-indexing company. eBay says
its auction data is unique, and legal claims include
'trespassing, copyright infringement, and false advertising.'"
The suit was filed "under a California statute originally written to fight 'cracking'" - I wonder if that's how trespassing got listed as a charge.
Here's a little more background on this lawsuit. In early October, an ABC News story described how the auction-indexer, Bidder's Edge, had taken out a full-page New York Times ad slamming eBay's protective attitude. At that time it decided not to list eBay items. In early November, it changed its mind and, says a ZDNet story, put eBay items back on its site. Thus the lawsuit.
If a specialized search engine for auctions is illegal, aren't all search engines illegal? Disobey the robots.txt file and go to jail?
What about sherlock? (Score:1)
That's all sherlock does, give you an integrated eBay search with your local searching...
Indexing web page is illegal? (Score:1)
Trespassing? (Score:2)
As for 'false advertising'; that's just bullshit (probably; the Globe doesn't really elucidate).
Lions and tigers and bears, oh my! (Score:1)
What next? Armageddon? Slashdot patents the forum?
What about /. ? (Score:1)
Isn't this 90% of what Slashdot does? Heck, it's 90% of the Internet. This could hae some really nast implications...(Microsoft, today sued everyone who said anything bad about them, claiming a drop in stock price as a result).
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Maybe Disobeying Robots.Txt Should Be Illegal (Score:4)
"If a specialized search engine for auctions is illegal, aren't all search engines illegal? Disobey the robots.txt file and go to jail?"
Well, maybe it *should* be illegal. I suppose that constitutes an unauthorised access of a network, despite explicit instructions through a known standard to stay off of that network.
Still, it's creepy, no?
BTW, eBay has no robots.txt [ebay.com] file. That, IMHO, gives them no room to gripe.
Why does Ebay care. (Score:1)
ok, here's an attempt at making sense (Score:1)
Re:Lions and tigers and bears, oh my! (Score:1)
Uh, I thought that Eric Schmidt sold Amazon the right to use cookies... <g>
property (Score:1)
I think that without a doubt (and it's been stated many times before, in other articles) a completely new set of laws related to these internet property issues must be devised. The only problem is, do we really want the US Congress (for those of us in the US) to be the deciding factor in issues like this? We also don't need to see another Communications Decency Act.
Solution: The government should appoint Slashdot as the official legislating group in all matters related to the internet, since we always know what's best.
This isn't *such* a big deal (Score:2)
So this company simply did something they knew they were not supposed to. Their fault. But that doesn't mean that if EBay wins, linking will become a crime (ignoring robots.txt maybe, as somebody else has pointed out - at least when you make money with ignoring it).
Re:Trespassing? (Score:3)
People who browse (normally) are not trespassing since they are "authorized" by eBay to access their web pages.
IANAL but I can still remember a bit from my law classes.
Robots.txt (Score:3)
It is one of the cardinal rules of running a search engine service, with its corresponding spidering efforts that we ensure we comply with the owner's requests regarding examining their site as contained within a Robots.txt file. I work for a search engine company and we certainly make every reasonable effort to do so.
If E-bay has such a file on their system which requests that spiders NOT search their site, then it seems reasonable to say that no-one should index it. If they do not have such a file, then it ought to be open season. Of course, this would exclude them from being listed in regular search engines - but you can't have it both ways.
The most disturbing thing about this to me is the threat that this may affect linking period - as rediculous as it would be to me to say that in order to link to a site you must obtain the site owner's permission - it might not seem so to a US court (who seem capable of making the most patently(every pun intended) absurd decisions where the internet is concerned).
Mind you, threats like this have come and gone before, but I still expect some US judge in some tiny court somewhere to make some pronouncement that threatens the entire Internet - out of ignorance no doubt, but that may not matter.
While the internet should be an international medium of communications, in reality it is a US means of communications and is directly controlled under US laws. As long as this is true, it will continue to be subjected to threats like this. What we need is an international body of law which governs internet communications that acknoledges the rest of the world as being part of the whole picture.
This could be the reason (Score:2)
Re:Trespassing? (Score:3)
Actually, I don't know about California law, but in Illinois tresspassing implies that the owner of the private property has advised you that you are on private property, that you are not welcome, and that you are to leave poste-haste.
If this is the case in California, then a browser is welcome on their property without specific permission, until they are asked to leave and then after being asked to leave, any contact with their property is considered tresspassing.
So the point is, if eBay asked a deep indexer (or whatever they're called) to stop indexing and they continued despite that, maybe they have a case.
The more interesting question is: does trespassing law apply to a computer? I'm not physically standing in the computer room or on the computer, right? Hmm... good question. I wonder if I can Sue The Spammers [slashdot.org] on these grounds!
Mixed feelings (Score:1)
Re:Trespassing? (Score:1)
I just hope the judge understands what's going on enough to rule fairly on this. I'm afraid e-bay may have ignorance on their side.
Re:Why does Ebay care. (Score:2)
I don't know about the rest of the world, but I'm not real happy with this act.
Why They Care (Score:1)
From a traffic point of view it should benefit eBay to be linked to by any manner of search or redisplay sites. That is the principle on which the rest of us work. I'd love to have my site watched and the information on it passed on in any form to interested parties.
It's only the advertisers on eBay who are losing out - and who ultimately pay for the lawyers.
can you say ridiculous? (Score:1)
Re:Why does Ebay care. (Score:1)
Cracking? (Score:1)
So eBay has filed suit in US District Court in San Jose under a California statute originally written to fight "cracking," or breaking into computers.
Oviously, Bidder's Edge isn't cracking anything, at least by any sane definition. Can anyone post the text of (or a link to) the statute referred to above? I'm curious how the State of California defines "cracking".
"Trespass" has some legal precent (Score:2)
See the rough start here [egroups.com]
Re:Trespassing? (Score:3)
On-line auction fundraisers! [communitybids.com]
Re:Trespassing? (Score:3)
Seems kind of silly. Compuserve somehow convinced the Court that the spammer was causing performance problems by using the servers, and the court noted this. So, maybe it might not hold if the truth of the minimal intrusion is made known.
This also has broader implications for the open, shared information qualilities of the web. Hell, in common law trespass, you don't even have to know that you are "tresspassing" to be guilty of such!
Other options for eBay? (Score:2)
Granted, this lawsuit gives off a very bad smell, but how else is eBay is going to keep surfers on their site and surf pass their ad banners? They've taken the time to set up a site to manage *thousands* of auctions at a time, and then some third party comes along, writes a simple search engine, and tries to get surfers to switch to their site to look at *their* banners.
If eBay thinks hits on their banners are *that* important, they should put more on the pages that describe individual auctions' and deal. What do you all think?
George Lee
Re:Maybe Disobeying Robots.Txt Should Be Illegal (Score:1)
But let me speculate about WHY eBay has no robots.txt: they want to have it both ways, with appearances on AltaVista or Yahoo! or other non-auction-specific search engines (to eBay, free advertisers), but not links on auction-specific search engines (to eBay, the competition's free advertisers).
If that's their motivation, I say tough shit: you either let your info be indexed freely, or you license the privilege -- no inbetweeners.
financial threats? (Score:3)
Has this ever been ruled upon in the courts before? I don't know of any cases, I'd be interested in any that might have been. What worries me is that ebay seems to think that linking = cracking (cracking being the word they used). If this is all they have to file a lawsuit I don't think they'll win, but you never know. That goes right to the issue of the legality of links we've been seeing the past few weeks. Stories like this support my theory that capitalism is incompatible with the "information age", but thats a whole seperate issue.
Re:This isn't *such* a big deal (Score:1)
Re:What about sherlock? (Score:1)
Re:ok, here's an attempt at making sense (Score:2)
Oh boy... the walls that people with the old, traditional commerce mindset bang into when they get on the Internet. Seems that people just don't grok what the h*** the Net's all about. If you look closely at this case, you'll realize that all eBay's trying to do is to create a "business setting" (as in the traditional model of business in the physical world) on the Net. Looks like they don't quite understand what the Net is all about -- information sharing.
Business on the Internet is completely different from business in a physical store. On the Net you can't really sell information -- because information is freely copied and redistributed. What you can do, however, is to publish information that others find helpful. In particular, you can publish information that attracts customers to buy from you. It will be difficult for the goods themselves to be shipped over the Net, because of the nature of electronic information (copy at no cost, almost no-cost of redistribution). If the goods are information itself, you'll definitely run into problems like this, which perhaps shows that the medium isn't exactly suited to your purposes.
If you want to make money on the Internet, you've got to understand that it's simply an information channel, not some bizarre, electronic equivalent of the physical world. You cannot expect to "own" information on the Net. There is no such thing, esp. not on the Net. You use it as an information channel to let people know of your existence, then they come and buy from you. You can't control information on the Net.
Competition (Score:2)
They want to be number one (and, preferably, the only one). If they weren't already number one, I think they would have a different attitude.
XML and an interesting personal experience (Score:4)
This is because our old plan, that is parsing the Weather Channel home page's weather information for our region, has become legally suspect. At least our lawyers tell us so!
This is funny for two reasons:
1. It can't be legally suspect because of content. Please don't tell me the Weather Channel online has copyright to the weather. Weather is by definition public domain and I don't see any copyright infringement from using the information therein. Would you get in trouble for telling someone else what the weather is by word of mouth, without accrediting TWC? Weather is weather!
2. It can't be legally suspect because of implementation. We're not using the Weather Channel's implementation *at all*. Their layout is theirs, and we're just using the (aforementioned, public domain) content. They have an entirely different HTML structure, we actually parse out all the HTML and formatting and use the bare, public do main weather content.
So if it's not the content, and not the implementation, what is it? Why are our lawyers jumpy? It almost sounds as if the Weather Channel would get angry because we dared to rebroadcast the weather data they rebroadcasted from the National Weather Advisory (or whatever the organizational body's name is)... At least in the eyes of our paranoid lawyers. The Weather Channel hasn't bothered.
This leads to another issue. I promised you XML in the title and XML you wil get. XML's entire raison d'etre (reason for existence) is to make parsing of information easier. Yet, if we are to deal with a generation of confused copyright lawyers who aren't sure if parsing is legal or not, what's the point? XML makes content implementation-free, that is to say if I parse, TAG FOR TAG, the information off of the Weather Channel 2000's XML Weather Page, then my implementation and their implementation can be drastically different, but we could have the same DTD's and therefore the same content.
And the content is, unless you are seeing something I'm not, public domain. Please tell me weather is public domain. If it's otherwise, I'm going to kill myself now.
Do DTD's count as content, or implementation, or is it an open standard that is to be used as all (read: "public domain") I'm not sure, but if more incidents occur such as ours, then we should look into:
1. Reconsidering XML
2. Reconsidering what constitutes public domain
3. Firing our lawyers and hiring a younger generation
That's my $0.02
Why don't we all just go to law school (Score:1)
my thoughts (Score:1)
Would it be illegal for me to advertise one of my EBay auctions on Usenet? (I know it would be annoying unless on alt.forsale...) Then would Dejanews be breaking the law by finding my advertisement for someone?
I think of the Internet as a public forum. Everything posted on non-secure sites should be available for linking and searching. The web is compelling because there is so much information linked and searchable. These lawsuits are setting dangerous precedents.
I do see a problem with commandeering someone else's content and then putting your own banners around it. That is different than what (most) search engines do.
E-Bay suit parallels local TV suit in Orlando (Score:1)
I think this case will go the exact same way.
Re:Maybe Disobeying Robots.Txt Should Be Illegal (Score:1)
-Me
LetterJ
Lawyer: hundreds of years of precedent for trespas (Score:4)
There is no need for a statute to sue for trespass here--the Common Law has recognized "trespass against chattels" as far back as we have records. Kicking a man's dog could qualify.
The law also does not require personal contact. "Tresspass vi et armis" (sp? haven't used the phrase in ten years . .
Finally, note that this is civil, not criminal trespass. Generally no warning need be given. While trespass requires specific intent, it is the *act* that causes the trespass, not result of the act or the knowledge of ownership by another that matters. If I take a step, believing that I remain on my own property, but actually cross the line into yours, I've committed trespass. OTOH, if I suddenly fall and happen to land on your property, there is no intentional act, and no trespass.
I'm actually surprised at how few of these we see; trespass is trhe obvious cause of action for computer intrusion.
hawk, esq.
I wonder if I'd be sued (Score:3)
"All trademarks and copyrights on this page are owned by their respective owners. Comments are owned by the Poster. The Rest © 1997-99 Andover.Net. "
That's right, Andover.net owns the copyright on anything that's not already trademarked or copyrighted and not posted by users
I wonder if I were to be sued by the mega-corp Andover.net
My point to all this
(Note: I had a recent "go-round" with Google.com about them serving my entire copyrighted content without my permission via their "cached page" option
Re:Robots.txt (Score:2)
The Internet is only a US means of communications in the US. The world is a little bigger than the US. If Bidder's Edge weren't a US company there wouldn't be much eBay could do about it.
Re:XML and an interesting personal experience (Score:1)
One semi-reasonable reason why the Weather Channel may have the right to stop you parsing their data is that you are offering a competing service to theirs, but using their resources to provide it.
I don't know how weather data is shared in the USA, but if they have paid to recieve the National Weather Advisory's interpretation of recent raw weather data, and they are paying for the bandwidth to answer your software agent's request for the page that contains it on their site, it seems reasonable that they might object. The weather must be public domain, but any particular measurement of it, and certainly any interpretation of it may not be. You can read their web page and then talk to a friend about it because that is a kind of reasonable use. Connecting to their server, parsing out the information you want, then representing it without acknowledgement (for their resources that you have used) doesn't seem so reasonable.
Perhaps they have a statement on their web-site somewhere that explains how they feel about this kind of thing? Kind of like attaching a license to a web site. I suspect this is the answer to the eBay question too. Someone suggested that eBay doesn't have a robots.txt. I was under the impression that you can put one in any directory to affect robot behaviour from there downwards. Is that correct, and if so, does eBay really have no robots.txt files anywhere on its server?
As for your particular case, perhaps Weather Channel would be more than happy for you to use their service to build your page if you provided a link back to their site in an acknowledgement on the page? That doesn't sound unreasonable to me.
Re:Other options for eBay? (Score:1)
How about by implementing a secure access system? Like New York Times, it would be free but access is not available to non-subscribers.
Right now, E-Bay is like a flea market. Anyone can come in, anyone can sell something. More importantly, nobody is standing st the door keeping people out or making them pay anything to get in.
But as long as E-bay wants to take advantage of people's attraction to free, easy to use locations, they'll have to put up with the inconveneience of people taking advantage of that freedom. After all, they're not providing the products being sold, just a location to sell them. And E-bay still gets their commission on each sale, so they're not really losing out.
If they're so hot and bothered then they should use technology to solve the problem, not lawyers.
Re:XML and an interesting personal experience (Score:2)
I can't speak in great detail or with absolute assurance about matters; I attend all the meetings but I'm really more of a server monkey/python programmer than I am a member of the web design or business/marketing teams. Still, I don't understand how you can make a service out of providing public domain information. I know Corbis does it, I know the Weather Channel seems to do it, but I don't understand the legal justification for it. How does providing a free service (the web page) for public domain information (the weather) allow them the right to own the weather (or so it seems)?
This could actually help Ebay. (Score:1)
Re:XML and an interesting personal experience (Score:2)
There are old cases like this dealing with newspapers. One newspaper would buy an early edition of the others, find out what happened, and write stories with that information. As I recall, the ruling was that this was unfair competition--not that a copyright was violated. Part of this was because the used news appeared in a paper competing with the original--had they waited until the next day, the case would have been different. Taking real-time information from another web site would seem comparable.
Also, if there is a script parsing the othr site's representation of the weather, then producing its own representation in a deterministic manner, this would seem to be a derived work by definition.
Finally, though I haven't paid much attention to them, there have been cases finding that real-time scores of sporting events are intellectual property of the league, and can not be broadcast by other services.
hawk, esq.
Re:ok, here's an attempt at making sense (Score:2)
I disagree. That's like saying "Because the physical laws of space allows photons to bounce off your work of art, and be received as vision by anyone in the vicinity, or converted into pictures by optomechanical devices, then by displaying it in a public area you lose your copyright". They're foolish for not having a robots.txt file, though, as that could be interpreted as a clear enough "keep out" sign. I look forward with amusement to the contents of robots.txt becoming a legal precedent in a case.
Re: OFFTOPIC - Metar (Score:1)
robots.txt (Score:1)
robots.txt only works for well behaved bots. Spam bots, site rippers etc. are quite free to ignore it. These days people are getting lazy about writing well behaved search engines, for example I had Infoseek's bot hit my site twice this week, and it attached 20 sessions at once *grrr*
Re:XML and an interesting personal experience (Score:1)
Why shouldn't a weather forecast be copyright? Whether it's making involved a lowly clerk looking out of the window, or a battery of supercomputers, the weather forecast has a copyrightable form of words - just like a work of fiction. (And most forecasts are little more than that.)
Of course, if it's USGov-sourced then it may be public domain but any further editing/processing/creativity applied to it by an intermediary might make it copyrightable.
However, you really needn't kill yourself over this.
Regards, Ralph.
Straw man case ideas (Score:2)
In my next post, I will try to list some good "straw man" scenarios for bringing the desired results. Right now, since no one reads postings after the first hour, I encourage others to toss in ideas.
Background: Assuming the current wording of the Constitution re copyright, trademark, patent, etc., notably limited time frames, and the intent to create a situation where the public benefits from creative/inventive work, will suffice to create the interpretation we desire, we need to generate "straw man" cases to ensure that the Constitution is upheld.
"Straw man" suits are situations manufactured specifically to create a case that will test the constitutionality of a law. They were used effectively by Civil Rights advocates to ensure enforcement of the 14th amendment (others please provide references), most famously in Brown v. Board (IIRC), where a special effort was made to enroll a black child in an all-white school in order to create the conflict eventually resolved by the Supreme Court in favor of integration.
Similar "straw man" tactics could aim at recent legislation like Sonny Bono and DMCA, and would also aim to clarify precedents such as fair use and prior restraint as they pertain to the internet.
Possible targets for straw men:
DMCA prior restraint by letters to ISP's for "suspicion" of copyright violation, (previous whistleblower cases effective here, but a good straw man should be able to even stop most ill-advised injunctions)
DMCA fair use restriction by banning "devices" that could be used to copy,
Fair use restriction by likes of eBay, trying to pick and choose who can link their site.
Patent hoarding, plus attempts to enforce overbroad patents
Software licensing that violates fair use by trying to claim licensees have no ownership-like rights
Software patents as not per the intent of patent provisions of Constitution
Attempts to claim databases of public information as copyrighted data (eBay vulnerable here, Westlaw the worst perpetrator)
The monopolization of broadcast channels by a few large providers
etc, etc, etc
Real killer straw men would take down several in one swath, by demonstrating new principles, such as:
Speech that is easily published and accessed deserves at least the same level of protection, perhaps more;
The power/resource imbalance of corporations and institutions vs. individuals is similar to that of the government, and thus even the possibility of unfair restraint on use of IP can be held as prior restraint;
The ability to make high-quality or exact replicas does not equate with intended or actual violation of copyright;
there are probably others...
So, any ideas?
Not an issue of indexing or searching (Score:3)
- Ebay has a database of its auction information
- Ebay dynamically creates web pages to reflect searches that users perform
- The information in Ebay's database is copyrighted by Ebay
- indexing and distributing a portion of a copyrighted database is illegal unless you have the permission of the copyright holder
Bidder's Edge clearly does a search of ebay's databse, probably by using the public interface ebay has provided. They are not merely providing a link to static pages; they are searching a copyrighted database and then providing its users with the results. They are doing this for profit (note the banner ads). I think that ebay has a pretty good basis for a lawsuit.
However, I can't see how Bidder's Edge would be guilty of cracking or trespass. If I provide a public interface to my database, it's hardly trespass if someone uses it. I wonder if they had ordered Bidder's Edge to cease and desist before filing this lawsuit, explicitly denying them from accessing ebay. If so, then I think it's an open and shut case.
And the moral of the story - all you guys out there who have written a script to display
... (Score:2)
PS. didja notice there's a fake, "Signail 11," who uses commas?
Pope
Re:XML and an interesting personal experience (Score:1)
Re:This could actually help Ebay. (Score:1)
Re:Trespassing? (Score:2)
After serving such an order to Bidder's Edge (who of course responded with "UP YOURS!"), ebay would have the legal basis for cracking/computer trespass charges.
Of course, I am not a lawyer...
Ad banners? Don't make me laugh. (Score:1)
Search for:
Re:XML and an interesting personal experience (Score:1)
Then they should use robots.txt (Score:2)
http://www.ebay.com/robots.txt [ebay.com]
P.S. Be careful, clicking this link may be considereed trespassing!
ebay is within its rights (Score:1)
Re:Robots.txt (Score:2)
Maybe that isn't what the issue is. (Score:2)
I think this case is a little more complex than a link to static information would be. Bidder's Edge could be constantly spidering all the changing auctions on e-bay in order to provide their service -- it could cost ebay more than the increase in sales the links create.
Deep-linking to a book on amazon is a completely different issue. Anyone following the link is likely to be interested in buying, and the only time there is a load on amazon's servers is when the potential buyer visits. With spidering the ebay server could be visited many more times than the increased sales would warrant. If many people took BE's position they could almost mount a denial of service attack on ebay. Ebay's hosting costs would rise and sales drop because of server load. Bidder's Edge and their ilk make a buck at ebay's expense.
In addition, sales through bidder's edge would bypass any advertising that ebay targets for people browsing it's sites - this could be an issue even if bidder's edge aren't spidering.
Bidder's Edge could provide their service by running a query on multiple auction sites on behalf of the user. That way there is only a demand on ebay when a potential buyer is interested - both parties should be happy unless they still want to fight over ads. Unfortunately this solution would be slightly slower for a user of Bidder's edge, so they may have chosen to make ebay foot the bill for their service instead of their customers.
+++++
Re:XML and an interesting personal experience (Score:2)
What you are saying is that you are not competing merely because you are a branch of the government and you don't plan to make a profit. This is irrelevant. Your service could cause The Weather Channel to lose eyeballs, and that would be the problem, from TWC's point of view.
I don't understand how you can make a service out of providing public domain information.
It's simple. You obtain PD info and you sell it. It' skind of like making a service of providing GPL software. There have been cases of business being charged with fraud for charging $$$ for a single piece of PD paper, but if I collect lots of info from lots of sources, it would conceivably be cheaper to buy the aggregate from me than to get it all yourself.
Re:Lawyer: hundreds of years of precedent for tres (Score:2)
I think the reason is that the internet was designed to be trespassed upon. For example, when I send you email, my message goes across many other servers en route.
It's going to be even harder to argue that eBay has the right to refuse access to the indexer when their website is open to the public. How freely can a company refuse entry to its premises? I know most restaraunts have signs that say that they "reserve the right to refuse anyone", but they really don't have that right. They can't, for example, refuse to serve minorities. To what extent *can* they refuse access?
Can they refuse access to comparison shoppers? I seem to recall a case where Best Buy kicked a comparison shopper out of the store on trespass charges. He was aquited and filed suit against Best Buy. I don't know the outcome of that suit, but the judge clearly felt that he had a right to comparison shop at a public store. That's all the auction indexers are doing?
Re:XML and an interesting personal experience (Score:1)
Re:Why does Ebay care. (Score:1)
Re:financial threats? (Score:2)
Re:This isn't *such* a big deal (Score:1)
Not in any standard acceptable way they haven't.
The standard acceptable way:
META tags to forbid indexing of individual pages(don't think they have these).
robots.txt file to forbid by directory (I know they don't have this).
Those are the acceptable, standard ways. There may be more I forget about..
In any case, if they took no action to prevent it (robots.txt would be plenty, since it is a standard), then IMHO they have no right to bitch. They didn't even TRY to stop the system in a standard way. They just went straight to the courts.
Fuck ebay. I'm not buying squat on there anymore.
---
Re:XML and an interesting personal experience (Score:2)
Oh, yes, it can. A compilation of uncopyrighted material can be copyrighted. I'm not sure what the minimum amount of material is, but I know that you can take 200 songs whose copyright has expired, publish them all as a book, and then copyright the songbook - this is how some hymnals are copyrighted.
Re:Lawyer: hundreds of years of precedent for tres (Score:1)
The database vendors tried to get copyright protection for database content into the 1998 Digital Millenium Copyright Act [arl.org], but failed. In 1999, they tried a separate bill, H. R. 1858, deceptively named "The Consumer and Investor Access to Information Act of 1999", to restrict copying online databases, but Congress didn't fall for that one.
So eBay can threaten, but probably can't do much. If they had a solid copyright case, they could have used the awful "notice and takedown" provisions of the Digital Millenium Copyright Act to force this competitor off the net. But if that didn't happen, their case is probably weak.
The "trespass" argument sounds like a desperation move.
A similar case (Score:1)
Re:Trespassing? (Score:2)
I'm pretty sure ebay has hired competent lawyers, and I can't imagine they'd sue over a trespass charge without laying the legal foundation for it by repeatedly telling Bidder's Edge to stay away from their servers.
Re:financial threats? (Score:1)
Re:XML and an interesting personal experience (Score:1)
Internet King
Re:Maybe Disobeying Robots.Txt Should Be Illegal (Score:1)
But the robots.txt file allows this! eBay can specify that they only want this or that search engine to index them. The robots.txt isn't all or nothing. I think you're giving them too much credit as it is. It's not that they want to have it both ways, it's just that they're too stupid to realize that it doesn't have to be all or nothing. ^_^
-zack
Re:XML and an interesting personal experience (Score:1)
They could have it both ways. (Score:2)
This smacks of a last minute management descision, that they don't want to be indexed by some particular other group, but they didn't know they cared last week.
Re:financial threats? (Score:1)
This is also why I hope they lose. The more control a few large companies have over the internet, the more it becomes just a tool of commercialism, and less a tool of information.
Milo
Re:XML and an interesting personal experience (Score:2)
The robots.txt spec is very clear on that point. the robots.txt file must reside in the root directory for a particular server. If they have a robots.txt somewhere else, it's being completely ignored, and they meeting the spec. Placing a robots.txt somewhere else and expecting it to be used would be foolish.
Re:Lawyer: hundreds of years of precedent for tres (Score:2)
I agree. How can that be legal if the website is open to the public, even if they have a robots.txt file? Copyright laws and the internet simply don't mesh the way they do in other mediums, otherwise the internet loses most of its benefits. If the ability to "link freely" is lost, the internet becomes more one dimentional like television. If you can't find your way to relatively obscure sites, we're going to end up with nothing more than amazon.com and cnn.com.
If anything websites like this increase competition very directly. Of course ebay doesn't like this for that very reason, and I hope the judge realizes that. These websites help in reducing products to a commodity, which is favorable to the consumer, and bad for the corporation. Ebay reminds me of microsoft in this respect, as microsoft tries to hijack (make proprietary) public protocols (tcp/ip, etc) for it's own profit/control.
On another interesting note, there is a webpage www.dealpilot.com that has the same idea but for online booksellers instead. So don't be suprised if we hear about amazon sueing these guys sometime in the near future.
Re:A similar case (Score:1)
Hehe, I didn't think metacrawler would let me do a search this long. In any case, do you have a link to any info about this on the 'net? I can't seem to find anything.
http://mc7.metacrawler.com/crawler?gener al=What%27s+interesting+is+that+there%27s+a+case+a gainst+the+Onandoga+nation%2C+in+upstate +New+York%2C+who+are+selling+non-taxed+cigarettes+ over+the+interent+and+making+a+bundle.+T he+Onandoga+nation+argues+that+the+sale+of+cigaret tes+occurs+on+their+ground%2C+so+it+is+o utside+the+US+tax+law+jurisdiction%2C+but+%28I+bel ieve+it+was+the+Syracuse%29+D.A.+says+th at+the+sale+occurs+on+the+users%27+side%2C+and+thu s+should+be+taxed.+Interesting+to+see+wh at+the+court+decides...&method=1®ion=0&rpp=20&time out=0&hpe=10&sort=0&power=0&format=regul ar [metacrawler.com]
What (or who) is a robot, legally speaking? (Score:1)
But does the judge know this? What if some company claims that robots.txt is an information access control mechanism rather than a server usage policy document, and accuses a human of bypassing that file to gain unauthorized access to semi-restricted information placed on the server without any real access control (say, they try the "secret URL" trick)? Ok, the human isn't a robot, but maybe his browser could be considered an automated client? Perhaps a single HTTP request doesn't count, but they can probably check their logs and come up with a number of accesses in a row (they were for inline images; who cares really), not one of them is for robots.txt, and the guy is fried.
It's just one scenario out of several possible. What about proxy search engines, sending user queries in parallel to the search facilities of several servers; are they supposed to obey robots.txt too? What about document processing facilities such as the Babelfish or an HTML syntax verifier?
Be careful about what you say in those laws.
Re:What (or who) is a robot, legally speaking? (Score:2)
The robots.txt file is meant to prevent a crawler from going through certain directories and files, and not to prevent access to a single file.
Clash of legal profession and the Internet (Score:2)
In every single instance, the legal profession is first asked for advice, and subsequently it is the legal profession that implements the action. In each of these cases, they gave the wrong advice and implemented the wrong action. This seems to be happening with ever increasing frequency. Why might this be?
Well, I can think of only two possible explanations. The first one is that lawyers are totally clueless. Now, despite every indication that this is the case, I think it is unlikely, merely because the educational requirements are likely to weed out the total morons. The alternative explanation is that lawyers are totally amoral and self-serving, that they see the Internet as a fantastic opportunity for creating new work for themselves, and that they do so with complete disregard for commonsense despite being intelligent enough to know exactly the nature of what they are doing.
Are there any other possible explanations?
Re:Maybe Disobeying Robots.Txt Should Be Illegal (Score:1)
Actually, this leaves me concluding that their suit is (even more of) an unnecessary harassment. The standards for accessing their site protect them fairly, but they want to impose an unfair burden on their competition anyway?
Of course, I could be wrong again
Re:What (or who) is a robot, legally speaking? (Score:2)
As for me, I think robots.txt should be used only to prevent abuse of server resources, not to control access to information that a human user would be allowed to access anyway, even if the information comes in the form of a directory tree.
Let's say that I design a proxy server which tries to anticipate the user's future moves and preloads pages referenced by the page that was just requested (and delivered), in order to speed up browsing. I want it to be very careful about how often it bothers a particular server; I'd suggest not retrieving more than one document per minute, and adjusting the pause upwards if the documents are large. It should not go retrieving documents unlikely to be retrieved soon by a human user, say those referenced by pages already preloaded but not yet requested. I don't think it would place enough load on any server to worry about; it may rather diminish the load by serving multiple users. Still, it looks pretty much like a robot to me, and I believe the current robot policy would expect it to obey the robots.txt file. So, if some server disallows all robots, does it mean my proxy will have to turn off cache preloading for that server, or even refuse to connect to that server at all, telling the user to go get those pages himself?
On the other hand, if I have a server generating a theoretically unlimited number of hypertext documents on the fly as the users request them, I don't want a robot to go requesting those pages all by itself, even if it only makes one request per hour, since it may keep doing so for months and years, and I don't want to waste server CPU cycles and disk space to generate and cache obscure pages for the amusement of a machine, especially when I also try to gather statistics on what data the users find most interesting!
By the way, the Ebay lawsuit seems to be about information access and possibly copyright, not server load or skewed server statistics. It doesn't take a robot to access information without permission or violate someone's copyright. I therefore doubt robots.txt is the proper solution in their case.
why eBay did it (Score:1)
Re:Straw man case ideas: overpromised? (Score:1)
1) The internet itself is the original and best straw man for free speech, as demonstrated by the proliferation of cases like this.
2) Much of the uniqueness of the internet from a legal perspective is the lack of both editorial and viewer control. This means that good straw man cases would require an ISP that will take the case as far as necessary if its rights are challenged, PLUS a separate publisher that can also fight all the way, PLUS an also-separate readership that can fight all the way. Why separate? Because otherwise, the court might place editorial/viewership control responsibility on the defendants (i.e. they'd say: If ISP X put up the page, it is liable, and can't be considered an infrastructure provider only, and if Publisher Y is recruiting a community of readers into an activity, it is liable, and can't be considered merely a conduit of illegally-obtained information.)
3) The unfair-competition aspects of IP abuse can only be challenged by an entity with a real financial stake in the outcome of the case, and no one wants to take that risk.
Nonetheless, there are some actions that could be taken:
A brave, well-heeled, liberty-loving organization could set up a perfectly-anonymous ISP. It would explicitly refuse to track identity, usage or cross-references of publishers or readers, and refuse to control content or access. It would also not profit in any way from its use or access.
If properly advertised and organized, it wouldn't take long for this ISP to contain all sorts of material that would *scream* to the courts its need for protection and access-- whistleblowers' internal docs from corps and govs, anonymous testimonials of wrongdoing, independent investigative journalism, political screeds on various topics, non-mainstream art and literature, etc. And it would also be sure to attract lawsuits by those who didn't like what was being said.
If the brave organization takes these suits all the way to the Supreme Court, a hopeful conclusion would go something like: "If this ISP is restricted in any one of the requested ways, the whole capability to provide and access the protected material is seriously impinged. If any of this stuff deserves to be protected, it all does. If any of the means of disseminating this speech need to be protected, they all do."
Other related actions could include encouragement to publish material of the type most commonly challenged. A "Worldwide Blow the Whistle on Your Company Day", or some such thing, to centralize, and provide a safe harbor for, challenged material. Again, a brave organization could sponsor or host.
The ban on copying devices in DMCA could easily be straw-manned by using such a device as the only/simplest/best means of distribution for some protected speech. Anyone care to cut a "Repeal the DMCA" album on MP3?
I'm not sure how to deal with software patents other than one at a time (again, our brave organization could make a living out of taking these down, as NAACP did with Jim Crow laws). Somewhere in that morass, we may find a patent whose result is that previously-protected speech or competition is curtailed in a way that implies all software patents could do the same.
Finally, to cut off the "we'll just scare others off by getting an injunction against these poor saps" suit, the above safe-harbor strategy could help: create a site or ISP with mixed political expression and challenged material, and create a way that they depend on each other for readership, and the courts would be hard-pressed to create rules that remove one without suppressing the other.
Now to find some brave organizations... ACLU, EFF, Public Citizen, who else?
Re:Trespassing? (Score:2)
The only issue I see is if you're blocking everyone else's view - which Bidder's Edge might have been doing if they spidered eBay too often, essentially resulting in a DoS attack.
In this case, The Right Thing To Do would be for eBay to make their servers throttle responses to an overly-inquisitive client.
Re:XML and an interesting personal experience (Score:1)
I think the point is that re-distribution of a database is suspect-- the compiler of a collection of information (database) *owns* that information. There was a law being considered (passed? overturned?) a while ago that said exactly this, and I suspect that this is eBay's strategy. Another example is NSI-- they have stated (and again I don't know the current status of this policy) that anyone attempting to distribute the contents of their WHOIS database will be prosecuted. So imagine this-- I have a web page www.whatever.com, and a cgi that queries the WHOIS database for MY OWN DOMAIN info and then puts it up on www.whatever.com. NSI can prosecute me for this! Yet another example (this one I got from a buncha objections raised to the afore-mentioned law) is a company that compiles a database of consumer "profiles"-- you might not have ownership of your own data! Owch.
Now that I think about it, there is probably an old
An interesting twist to the eBay story:
I am a systems admin for Neutron Computers (please don't hate me for it, it pays the bills) and we had several incidents where the owner of an auction would either link images directly to our web site (bad) or pull HTML straight from our pages, so the product description would be formatted EXACTLY THE SAME, even down to copyright notices in the text/code (worse)! Anyway, we contacted them about it and they disclaimed liability, citing their user agreement which places all legal responsibility on the auction's owner. So apparantly eBay wants to have its cake and eat it too-- they own the contents of their databases but aren't responsible for it!
I hate eBay anyway for the same reason I hate irc, magic:the_gathering, television, daily-pic-posts and heroin. Too damn addictive.
(the views expressed in this... er... rant are entirely my own and are not shared, endorsed, baptized, etc. by my employers, my university or pretty much anyone with half a brain.)
Re: What (or who) is a robot, legally speaking? (Score:1)
What makes using robots.txt interesting is that it's just a request to follow a set of standards, not a demand. And that, I think, is what's so unsettling about creating a law around that. That turns an optional standard into a mandatory one.
Re:XML and an interesting personal experience (Score:2)
Weather is by definition public domain and I don't see any copyright infringement from using the information therein.
The weather is of course, not copyrightable as it is public domain - but a weather forecast, as I imagine The Weather Channel has, should definitely be copyrightable. They put their own (well, someone's) research and effort into making original scientific predictions about the weather. It is up to the meteorologists who will own the copyrights, and it is up the the copyright holders what any licensing terms will be.
There's a "simple" solution to this sort of trash (Score:1)
Re:Maybe Disobeying Robots.Txt Should Be Illegal (Score:1)
Let's assume that obeying robots.txt is made into law, and that eBay creates such a file explicitely banning "Auction-Indexer" from accessing their site, but allowing all other robots. All you now have to do is set up a robot with a different name, say "Super-Duper-Auction-Indexer", and start all over. While it runs contrary to eBay's wishes, and can probably be challenged in court just like the previous behaviour, it's in full compliance with the robots.txt policy. The defendant could even argue that they are trying to comply with eBay's wishes, since they have now changed the robot name per eBay's request!
No, I'm now convinced that lawyers should be kept away from interpreting the robots.txt file at all. If you want to make robot exclusion a law, please pick another filename for that purpose. Being a webmaster myself, my legal requirements are different from my technical requirements. Saying "please don't use robots to access this site" is one thing, saying "robots accessing this site may face criminal charges" is quite another.
I think we have consensus (Score:1)
lawsuits cheaper than a CS course (Score:3)
Yes, referers are forgeable, but if you check to see that a referer contains something that, say, matches a user-level cookie, the indexers would be able to index all they want, but they wouldn't be able to link anyone to anything.
The fact is, eBay wants people do deep-link: they want users to be able to send each other links to items, which this would preclude. They just don't want anyone to make a compelling business of it.
Sorry, eBay. Unless you want to start distributing special client software, you're going to have to choose between allowing deep linking for everyone or for no one at all. If the courts fail to see this, there are some judges who need to go back to law school.
Thoughts... (Score:1)
Just reading the article, but here are some thoughts that strike me...
The price, quantity, and bidding data on its site are unique, eBay says, adding that no other Web site can display this information without eBay's permission.
Hmm.... So, on the strange offchance that some other auction site has the same price and quantity of an item (identical bidding data is too remote to even consider!), they could in theory be sued by E-Bay?
Robots.txt file - If E-Bay doesn't have one, then I don't see how they can complain about search engines indexing their site. If they don't want that to happen, create one.
Finally, E-Bay owning the content on their site. I believe someone mentioned this. But I don't see how they can own some types of content (they own the price $3.99 in relation to item X?), especially that copywritten by other companies, like product names or images. (Note that, to avoid flames, I am not saying copyright is good or bad. Just that it is.)
Standard Note: This is my point of view. I do not pretend to be fully informed on all the issues involved, since IANAL and have gotten all my information from Slashdot comments and a news article. :-) Also note that my examples are just that, examples, and probably have no basis in the real world.
-RickHunter
--"We are gray. We stand between the candle and the star."
--Gray council, Babylon 5.
why linking can't be illegal (Score:1)
i haven't gone and checked out either sites, and whether they are linking/indexing or having copies of the info from ebay (which of course WOULD be subject to copyright infringement). if they are merely linking, then we need to examine the concept of linking and what it really means.
imho, a site linking information to other sites is no different than a person refering other people to various information that they may have found out one way or another. if linking is illegal, then it must be said that it will also be illegal for me to tell you that KMart sells CDs cheaper than another competing store.
Re:XML and an interesting personal experience (Score:2)
Re:why eBay should pay for other people's indexing (Score:2)
//rdj
Re:Lawyer: hundreds of years of precedent for tres (Score:2)
Neither did the dynamite in the blasting cases I mentioned. It caused an an action on the property of another, affecting that property. Causing the head in the disk drive to move is more than sufficient to fill the elements of trespass. Moving electrons as bits flip is probably also enough.
> and access has not been granted.
They *took* the access. Yes, the web is set up to allow this, but they had actual notice of lack of permission.
>If eBay want to protect the site then why don't
>they refuse access to redirects from specific >sites or just refuse redirects full stop.
They could do that, though it takes resources to play the cat & mouse game that follows. But they don't have to under current law.