Archives for February 2004

In today’s New York Times, Jim Motavalli writes about people who tinker with, or replace, the software controlling their car engines. Some people do this to improve engine power or fuel efficiency, and some do it out of curiosity.

In a now-standard abuse of terminology, the article labels this as “hacking”. Worse yet is this sentence: “Perhaps inevitably, the hacker culture has also produced automotive pirates who buy legitimate chips from makers then copy the programming onto blank chips, selling the results at sharp discounts.” There you have it: tinkering is “hacking”, and “hacking” leads to copyright infringement, “perhaps inevitably”.

Sadly, the article misses a much more obvious link to the time-honored American tradition of automotive tinkering.

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 – 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.