Cyberspace Trespass to Chattels

A table of relevant cases

Laura Quilter, 1/28/2002

citations | table of cases | paper





Intel v. Hamidi

Cal. App. 3d
94 Cal.App.4th 325

Cal. Super. 1999
1999 WL 450944

email: Disgrunted former employee sent mail, from his own server, to Intel employees at their work email addresses.


for property owner: summary judgment for plaintiff Intel granted; Intel ordered to prepare papers for permanent injunction.

Nov. 1998 Cal. Superior Court granted preliminary injunction.
Intel filed for summary judgment.
6/23/1999 final order, granting summary judgment & permanent injunction.

1/18/2000 Hamidi filed appeal, and EFF filed amicus. ACLU-North. Cal. also filed amicus.
Super. Ct. opinion depublished.
12/10/2001, Cal. Ct. of Appeals 3d Circuit affirmed Superior Ct.

Petition for cert. filed.


significance: Non-commercial email with significant political content considered trespassory, and not protected by First Amendment or California Constitution; "harm" requirement of the action completely decimated, as the only harm considered and alleged was third-party harm (not harm to the chattel server).

Oyster Software v. Forms Processing

N.D. Cal.
2001 WL 1736382
Magistrate J. Spero

OS alleged FP infringed on TM & copyright by using a robot to copy metatags from OS' website & using them in FB's website; OS also alleged trespass & conspiracy. for property owner: Court found factual question re: TM claims & trespass to chattels, and denied S-J.
OS emailed FP about infringing metatags 11/23/1999;
FP claimed infringing metatags removed 11/24/1999;
OS brought action against FP & Barry Matz 3/1/2000;
OS dropped Matz & added Top-Ten as defendants 10/10/2000;
hearing 10/26/2001;
FP moved for S-J;
Oyster withdrew copyright claims;
order 11/13/2001
order amended 12/6/2001
Note: Court contrasted eBay and TicketMaster


  1. *** Shockingly enough, the use here was defined as "non-permissive" although the server was available on the Web, and plaintiff had not attempted to bar FP from accessing it. Mere "use" is sufficient to hold such an action. And since the "use" -- although open to the public -- was not forbidden until after the fact, the trespass was defined after the fact. According to this case, anybody can ex post facto be sued for trespass to a web-server.
  2. OS conceded that Top-Ten's robot placed a "negligible" load on OS's server & did not interfere with basic function; but court read eBay as imposing no such requirement, in contradiction with TicketMaster.
  3. Court thought there was a material issue of fact with respect to the relationship between Top-Ten (the independent contractor who sent the spider to OS) and FP. First time a business has been held liable for the actions of its independent contractor in a cyberspace trespass to chattels action.

TicketMaster v.

9th Cir. 2001
2 Fed. Appx. 741, 2001 WL 51509

C.D. Cal. 2000
2000 WL 1887522

2000 WL 525390

spider: spidered TM's internet-accessible database; reformatted & presented content on's website; & deep-linked to TM's website.

alleged trespass to chattels, copyright, breach of K, etc.

for spider / linker: preliminary injunction on TTC (and all other grounds) denied.

3/27/00 - dismissed trespass to chattels claim w/ leave to amend; did not grant preliminary injunction.

8/10/00 - did not grant preliminary injunction.

1/22/01 - 9th Circ affirmed

3/27: court says difficult to see how a publicly accessible website can be trespassed.

8/10: court says don’t take this opinion seriously.

significance: A third spidering case; and the only TTC case thus far where an injunction was denied for "lack of harm." Copyright violations also alleged, and the judge understood pretty clearly that the action was an attempt to protect data, rather than an attempt to protect a server. v. Verio

S.D.N.Y. 2000
126 F.Supp.2d 238

spider: V spidered's internet-accessible database; downloaded "Whois" information; and spammed potential customers.

for property owner: injunction entered on trespass to chattels theory.

12/8/2000: SDNY

12/14/2000 NYLJ 35 (SDNY)


NY trespass to chattels based on Restatement § 256

significance: A second spidering case following neatly in eBay's footsteps, and relying heavily on eBay. Information here was not copyrightable, but was rather used for spam purposes; however, the harm in the TTC was the alleged harm from spidering.

eBay v. Bidder’s Edge

N.D.Cal. 2000
100 F.Supp.2d 1058

J. Whyte

spider: BE spidered eBay's internet-accessible database; captured information & presented it in cost-comparison format on BE website.

for property owner: injunction entered on trespass to chattels theory

9 causes of action alleged: including TM, computer fraud & abuse, trespass, misappropriation

BE requested that eBay stop spidering - court did not examine TM issues because it wouldn’t affect spidering.

breaks eBay’s complaint into system harm (spidering) & reputational harm (bad data, TM). court ignores reputational harm in balance of harms analysis b/c no separate relief requested.

7/25/00: eBay’s motion to dismiss BE’s counterclaims denied. BE's appeal withdrawn after settlement out of court; BE now out of business.

harms alleged were vague; consumer interest in BE’s actions not taken into account

no actual slow-downs alleged.

costs arrived at by attributing a pro rata share of expenses to BE rather than calculating incremental cost.

significance: First significant "spidering" case; harms requirement diminished (actual present harm to the servers was unproven, and a potential, aggregate harm was considered instead).

AOL v National HealthCare Discount

N.D.Iowa 2000
121 F.Supp.2d 1255

US Magistrate Judge Zoss.

spam: NHCD hired independent contractor to spam; AOL sued.

trespass to chattels in Virginia

NO summary judgment - FOR spammer on AOL's summary judgment motion (because it's a question of fact as to whether NHCD is liable for actions of independent contract spammer.)

for property-owner, AOL, on trespass

not much discussion of trespass to chattels, but found that AOL had a "prima facie" case for tr-to-ch under Virginia law, if NDCD was liable for the independent contract spammer.

lots of info about AOL's terms of service and procedures for dealing with spam.

detailed description of how the facts leading up to the case.

raises lots of questions about whether use converts to unauthorized if violating terms of service.

significance: Not much, but detailed discussion of contract and terms of service suggests potential questions.

AOL v. Christian Brothers

S.D.N.Y. 1999
12/16/99 NYLJ 35, (col. 2)

US Magistrate Judge Pitman

spam: CB spammed; AOL sued.

alleged multiple laws from multiple states; applied Virginia law.

trespass to chattels in Virginia, plus a lot of other theories.

for property-owner, AOL, on trespass

It's unclear what happened to this case later , if anything.

major monetary damages, including $200,000 punitive damages on trespass to chattels (total damages: $129,000, $147,000, $347,000, or $613,000, and a permanent injunction.

Seems like defendants didn’t show up, so Magistrate threw the book at them.

significance: Really significant damages based on suspect, albeit unchallenged, numbers.

Intel v. Hamidi
(see 12/10/2001 for complete entry)

Cal. App. 3d
94 Cal.App.4th 325

Cal. Super. 1999
1999 WL 450944 (depublished)

AOL v.

E.D.Va. 1999
49 F.Supp.2d 851

spam: spammed; AOL sued.

AOL as public utility

for property-owner, AOL, against spammer;'s counterclaims dismissed.

good discussion of the public carrier vs. information service provider & FCC rationales.

any K based on expectancy of illegal profits (e.g., profits stemming from spam, held illegal in AOL v IMS & AOL v LCGM) is void !!!

significance: Not much.


E.D.Va. 1998
46 F.Supp.2d 444

spam: LCGM spammed; AOL sued.

trespass to chattels in Virginia

for property owner: injunction


E.D.Va 1998
24 F.Supp.2d 548

spam: IMS spammed; AOL sued.

trespass to chattels in Virginia

for property owner: relied on CompuServe; found that AOL’s goodwill diminished, and possessory interest harmed; therefore injunction granted.

10/1/98: judgement entered; 10/29/98: mem. op. issued.


harms once again indirect: staff time to combat spam, and loss of goodwill.

Seidl v. Greentree Mortgage Company

D. Colo. 1998
30 F.Supp.2d 1232

spam: GMC hired independent contractor to spam; IC used a false generic ID that Seidl had registered; Seidl sued.

trespass to chattels in Colorado, plus a lot of other legal theories, including junk fax.

spammer was independent contractor.

dismissed because spammer was Greentree’s independent contractor & not liable.


final paragraph speaks of Seidl as a "private citizen with an ax to grand about the political/social issue of spamming" & suggests the issue is better resolved in legislation

significance: First individual plaintiff to claim TTC from a spammer; court determined that legislative response was more appropriate.

Hotmail Corp. v. Van$ MoneyPie Inc.

N.D.Cal. 1998
1998 WL 388389

spam: V$MP spammed; Hotmail sued V$MP and 8 other defendants including ALS and LCGM.

trespass to chattels in California, one of 6 counts against 9 defendants, including ALS and LCGM.

for property owner: relied on Thrifty-Tel only for trespass; plaintiff likely to prevail on all charges.

significance: not much.

CompuServe v. CyberPromotions

S.D.Ohio 1997
962 F.Supp. 1015

spam: CyberPromotions spammed; CompuServe sued.

trespass to chattels in Ohio.

for property owner: preliminary injunction granted against spammer on trespass to chattels theory

TRO issued 10/24/1996; permanent injunction issued 1997 opinion.

"clear rejection of 1st Amendment defense" - no free speech rights for spammers.

harm is very indirect; no harm to the actual chattel, but reputational & subscribers' goodwill

commercial online service is not public utility

does consider the public interest, and weighs it (for spam-related factors) in favor of granting injunction.

Hamidi says "see discussion of internet server as not equal to postal service"

significance: first cyberspace Trespass-to-Chattels action in federal court; determined that commercial online services are not public utilities; reaffirmed CyberPromotions v AOL that spammers have no First Amendment rights vis-a-vis private ISPs.

CyberPromotions v. AOL

E.D.Pa. 1996
948 F.Supp. 436

spam: CyberPromotions spammed; AOL blocked; CyberPromotions sued to stop AOL from blocking.

for property owner: spammer has no First Amendment rights & can be blocked.

3/26/96: Cyber sued AOL for "bombing";
4/8/96 AOL sued Cyber on ECPA, consumer, Computer Fraud & Abuse Act, etc.;
6/96 AOL added misappropriation, conversion, & unjust enrichment.

1996 E.D.Pa. held for AOL.

Certified for immediate appeal to 3rd Circuit.

No information beyond this.

discusses tests for determining whether private actor acts like govt.

AOL’s ocean / channel / swimming pool metaphor. (at 455)

no free speech rights for spammers under US Const, Virg, or Penn.

AOL can block spam

AOL not a public forum: "mere connection to internet does not convert to public forum"

significance: spammers have no First Amendment rights vis-a-vis private ISPs.

Thrifty-Tel v. Bezenek

1996 Cal. Ct. App.
54 Cal. Rptr. 2d 468, 46 Cal.App.4th 1559


hacking: Bezenek kids hacked into phone system to get long-distance codes; Thrifty-Tel sued.

electronic signals.

trespass to chattels in California.

for property owner: tort damages on trespass to chattels theory.

Thrifty-Tel pled trespass to chattels;
Superior Court found Bezeneks liable on conversion;
Appellate affirmed but changed action back to trespass to chattels.

Rev’d & remanded damages because of failure to mitigate damages, and difficulty of calculating.

Conversion: Ds argue that intangible property interests can be remedied, but only if intangible interests merged with something tangible that can be physically taken.

App. court liked trespass to chattels doctrine for this situation.

amusingly written.

significance: electronic signals may constitute trespass to chattels in California.

US v LaMacchia

D. Mass. 1994
871 F.Supp. 535

copying software: LaMacchia charged with violation of wire fraud statute for copying copyrighted software (and distributing). Govt charged conspiracy to violate wire fraud statute.

for defendant: transmission of copyright violating works cannot sustain a wire fraud act case

cites to Dowling v US, 473 US 207 (1985) in which copyright is held to be not equivalent to ordinary chattel.

nice history of copyright law.

significance: LaMacchia outraged Congress, which passed Computer Fraud & Abuse Act in response.

State v. Riley

Wash. 1993
846 P.2d 1365, 121 Wash.2d 22

hacker broke into telco computer network to get phone codes. convicted of 3 counts computer trespass - a washington computer trespass statute.

for State:
conviction affirmed (some of the convictions overturned because of bad search warrant)

convicted in Superior Court of 3 counts computer trespass & 4 counts possession of stolen access device

significance: Very little, except that it has been cited as more support for trespass, even though it was a statutory trespass, not a common law trespass.

State v. McGraw

Indiana 1985
480 N.E.2d 552, 51 A.L.R. 4th 963

employee used server space to store personal files; hit with criminal theft charges;

for defendant trespasser: Supreme Court said use wasn’t theft because no harm; in dicta, noted that the action it was more akin to a de minimis trespass, or misdemeanor conversion.

defendant convicted; verdicts thrown out by superior court; reinstated by appellate; thrown out again by Supreme Court.

significance: Very little, except that the dicta was cited by Thrifty-Tel to suggest that trespass was appropriate in a computer/communications situation.

first developed: lq, 1/28/2002
last updated: lq, 08/31/05