Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

تمرين 15

Register.com, Inc. v. Verio, Inc.
United States Court of Appeals, Second Circuit, 2004. 356 F.3d 393.
LEVAL, Circuit Judge.
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* * * [Register.com, Inc.] is one of over fifty companies serving as registrars for the issuance of domain names on the World Wide Web. As a registrar, Register issues domain names to persons and entities preparing to establish Web sites on the Internet. Web sites are identified and accessed by reference to their domain names.
Register was appointed a registrar of domain names by the Internet Corporation for Assigned Names and Numbers, known by the acronym "ICANN." ICANN * * * administer[s] the Internet domain name system. To become a registrar of domain names, Register was required to enter into a standard form agreement with ICANN * * *.
Applicants to register a domain name submit to the registrar contact information, including at a minimum, the applicant's name, postal address, telephone number, and electronic mail address. The ICANN Agreement, referring to this registrant contact information under the rubric "WHOIS information," requires the registrar * * * to preserve it, update it daily, and provide for free public access to it through the Internet * * *.
* * * [T]he ICANN Agreement requires the registrar to permit use of its WHOIS data "for any lawful purposes except to * * * support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam) * * *."
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* * * An entity making a WHOIS query through Register's Internet site * * * would receive a reply furnishing the requested WHOIS information, captioned by a legend devised by Register, which stated,
By submitting a WHOIS query, you agree that you will use this data only for lawful purposes and that under no circumstances will you use this data to * * * support the transmission of mass unsolicited, commercial advertising or solicitation via e-mail.* * *
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The defendant [Verio, Inc.] * * * is engaged in the business of selling a variety of Web site design, development and operation services. * * * To facilitate its pursuit of customers, Verio undertook to obtain daily updates of the WHOIS information relating to newly registered domain names. To achieve this, Verio devised an automated software program, or robot, which each day would submit multiple successive WHOIS queries * * *. Upon acquiring the WHOIS information of new registrants, Verio would send them marketing solicitations by e-mail, telemarketing and direct mail.* * *
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Register wrote to Verio demanding that it cease * * *. Verio * * * refused * * *.
Register brought this suit [in a federal district court] on August 3, 2000 * * *. Register asserted, among other claims, that Verio was * * * trespassing on Register's chattels [personal property] in a manner likely to harm Register's computer systems by the use of Verio's automated robot software programs. On December 8, 2000, the district court entered a preliminary injunction. The injunction barred Verio from * * * [a]ccessing Register.com's computers and computer networks * * * by software programs performing multiple, automated, successive queries * * *.
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Verio * * * attacks the grant of the preliminary injunction against its accessing Register's computers by automated software programs performing multiple successive queries. This prong of the injunction was premised on Register's claim of trespass to chattels. Verio contends the ruling was in error because Register failed to establish that Verio's conduct resulted in harm to Register's servers and because Verio's robot access to the WHOIS database through Register was "not unauthorized." We believe the district court's findings were within the range of its permissible discretion.
A trespass to a chattel may be committed by intentionally * * * using or intermeddling with a chattel in the possession of another, where the chattel is impaired as to its condition, quality, or value. [Emphasis added.]
The district court found that Verio's use of search robots, consisting of software programs performing multiple automated successive queries, consumed a significant portion of the capacity of Register's computer systems. While Verio's robots alone would not incapacitate Register's systems, the court found that if Verio were permitted to continue to access Register's computers through such robots, it was "highly probable" that other Internet service providers would devise similar programs to access Register's data, and that the system would be overtaxed and would crash. We cannot say these findings were unreasonable.
Nor is there merit to Verio's contention that it cannot be engaged in trespass when Register had never instructed it not to use its robot programs. As the district court noted, Register's complaint sufficiently advised Verio that its use of robots was not authorized and, according to Register's contentions, would cause harm to Register's systems.
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The ruling of the district court is hereby AFFIRMED * * *.
1. Why should the use of a robot, or "bot," to initiate "multiple successive queries" have a different legal effect than typing and submitting queries manually
2. Are there any circumstances under which the use of a bot to initiate "multiple successive queries" could be justified against claims of trespass to personal property