Some information about BayTSP (the company that ODEX hired)'s
methods in using automated "crawlers" to sniff..
There has been claims that its actions may be considered as
tresspassing. After all, this is a company whose CEO is a former
hacker, Mike Ishikawa.
Next week in my IT and the Law
course, we're discussing cyber-trespass. Reading the course
materials got me to wondering whether BayTSP might be a
cyber-trespasser.
BayTSP is a small company that works for copyright holders,
monitoring the contents of P2P networks. Among other things, they
query individual computers on the P2P networks, to see what they
contain. Are those queries trespasses?
The closest case is probably eBay v. Bidder's Edge, in which a
Federal judge granted a preliminary injunction that stopped
Bidder's Edge from using a web crawler to access eBay's site. The
judge found it likely that the automated accesses by Bidder's Edge
to eBay�s site were trespasses. And it wasn't that Bidder's Edge
was hammering eBay's site with so many requests that the site's
reliability or response time were affected and the impact of the
accesses was minimal, but the judge found that that was enough to
get over the legal bar.
To be precise, eBay claimed that the accesses constituted trespass
to chattels, a legal term that is defined roughly as intentionally
messing around with somebody else's stuff in a way that causes
damage. It's a step, but not a huge one, from the Bidder's Edge
ruling to a claim that BayTSP's activity constitutes trespass to
chattels. It's far from certain that a court would take that step;
and bear in mind that the Bidder's Edge ruling was criticized by
many at the time.
BayTSP argues that what they are doing is legitimate, because P2P
users are publishing the information for anybody to see, and BayTSP
is only doing what any member of the public could do. That argument
seems pretty strong. But Bidder's Edge made the same argument, and
it wasn't enough to save them.
My guess is that a lawsuit against BayTSP, even if brought by a
sympathetic plaintiff, would be a long shot. And I think such a
lawsuit probably should fail, just as the Bidder's Edge ruling
should have gone the other way.
http://www.freedom-to-tinker.com/?p=516
Go and read up on EBay vs Bidder's Edge in the American courts.
BayTSP's methods are similar to what was used, in that there is
widespread automated data crawlers(I think that's what they are)
querying P2P networks, which may be used for legal transfer of
files between individuals and corporations.
Does their activity pose a threat to the network's resources?
Possibly.
(Chattels = Property, usually private property)
