Page 234 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 7 Platform Users’ Entitlement to UGCs: Human Use and Web Scraping
An Intermediary-oriented Approach

barrier to innovation and competition, and harm to social welfare. 160
2) Trespass to chattels
Trespass to chattels, one of the most traditional tort claims in common law, has also
been frequently asserted by UGC platforms against web scraping. In eBay v. Bidder’s Edge,
one of the first and most prominent web scraping cases, the plaintiff succeeded on a trespass
to chattels claim and was awarded a preliminary injunction based on demonstrating ‘the
161
possibility of irreparable injury’. This case established a two-part test to determine whether
a claim for trespass based on accessing a computer system could prevail: ‘(1) [the] defendant
intentionally and without authorisation interfered with plaintiff's possessory interest in the
computer system; and (2) [the] defendant's unauthorised use proximately resulted in damage
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to the plaintiff’. The court made it clear that the defendant’s conduct need not ‘amount to
a substantial interference with possession’, but merely ‘consist of intermeddling with, or use
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of another’s personal property’.
However, as the court articulated, there is no bright line demarcating the precise
level of possessory interference required to establish intermeddling. This has generated
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considerable uncertainty in trespass litigation. In eBay v. Bidder’s Edge, the defendant’s
activity was held to be sufficient to sustain a trespass to chattels claim, even though the
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defendant’s robots ‘use only a small amount of eBay’s computer system capacity’. In
Oyster v. Forms, the court held that the mere copying of metatags amounted to ‘use’ of the
plaintiff's computer and was sufficient to establish a cause of action for trespass. However,
166
in Intel v. Hamidi, the California Supreme Court declared that the Oyster case ‘incorrectly
read eBay as establishing, under California law, that mere unauthorised use of another’s
computer system constitutes an actionable trespass’. Under the California Supreme Court’s
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interpretation, eBay did not indicate its abandonment of the actual injury requirement that is
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still an essential requirement to sustain a trespass to chattels claim. In Craigslist v. 3Taps,
the court found that the defendant was likely to have diverted computing and communication
resources from the plaintiff’s servers. Though whether the defendant caused actual damage to
the plaintiff was a question of fact that should be determined later in the litigation, the court
held that evidence of potential harm was enough to deny the motion to dismiss the trespass

160 Williams, ‘Automation Is Not “Hacking”’ (n 110) 421; Jamie Williams, ‘“Scraping” Is Just Automated Access, And Everyone
Does It’ (EFF, 17 April 2018) <https://www.eff.org/deeplinks/2018/04/scraping-just-automated-access-and-everyon>
accessed 16 April 2019.
161 eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1063 (N.D. Cal. 2000).
162 Ibid 1069.
163 Ibid 1070.
164 Ibid 1070.
165 Ibid 1071.
166 Oyster Software, Inc. v. Forms Processing, Inc., No. C-00-0724 JCS, 2001 WL 1736382, at *13 (N.D. Cal. Dec. 6, 2001).
167 Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1357, 71 P.3d 296, 307 (2003).
168 Ibid.

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