Introduction:
While most people understand the concept of trespass on land, few understand that the law imposes another type of trespass, namely trespass to chattels. A chattel is defined as any property other than land (real estate is land). Chattel is personal property that is movable between locations, as opposed to real property, which has a fixed location. Common examples include mobile homes, furniture, automobiles, and the myriad of personal possessions you own, from books to electronics. It also includes electronic data and methodology. Note that leasehold interests in land are called chattels real because they bear characteristics of both real and personal property. Tangible goods are called chattels personal.
Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel (movable personal property). The interference can be any type of physical contact with the chattel in a quantifiable way, or any dispossession of the chattel (whether by taking it, destroying it, or barring the owner's access to it).
This article shall discuss the concept of trespass to chattels and how it differs from other types of torts involving personal property such as conversion and how this traditional tort is newly applicable to the modern world of the internet.
The Basic Law:
A key aspect of trespass to chattels is that it is an intentional tort. Negligence or lack of knowledge of rightful possession is a defense that can defeat the tort claim. In some common-law countries, such as the United States and Canada, a remedy for trespass to chattels can only be obtained if the direct interference was sufficiently substantial to amount to dispossession, or alternatively where there had been an injury proximately related to the chattel. (See Restatement (Second) of Torts, 1965.)
United States law:
The Restatement (Second) of Torts § 217 defines trespass to chattels as "intentionally… dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another." Harm to personal property or diminution of its quality, condition, or value as a result of a defendant's use can also result in liability under § 218(b) of the Restatement.
The Restatement (Second) of Torts § 218 states further that one who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if:
he dispossesses the other of the chattel, or
the chattel is impaired as to its condition, quality, or value, or
the possessor is deprived of the use of the chattel for a substantial time, or
bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.
In sum, the basic elements of a claim of trespass to chattels are 1) the lack of the plaintiff's consent to the trespass, 2) interference or intermeddling with possessory interest, and 3) the intentionality of the defendant's actions. Actual damage is not necessarily a required element of a trespass to chattels claim.
Trespass to Chattels in the Modern World of the Internet:
The trespass to chattels cause of action is an ancient cause of action, originating in the common law world. But it has had a revival recently due to the emergence of internet use. It is often pleaded as a cause of action against Internet advertisers and email spammers as well as included in causes of action against spyware companies. These electronic messaging cases, and their progeny, will typically turn on a chattel being impaired in use and the issue is the degree of damage caused.
The common law tort of trespass to chattels has also been invoked in the modern context of electronic communications to combat the proliferation of unsolicited bulk email, often termed spam. In addition, several companies have successfully used the tort to block competitors from accessing their servers. Though courts initially endorsed a broad application of this legal theory in the electronic context, more recently other jurists have sought to narrow its scope. As trespass to chattels is extended further to computer networks, the argument is advanced that some companies are using this cause of action to hinder competition and to deter the exercise of free speech. The thrust of those seeking to limit its application is to insist upon actual damages being proven, a difficult task given the wide extent of the possible use. How does one prove that spam has cost one money?
The trespass to chattels tort finds liability against anyone who substantially interferes with the use of another's chattels. Plaintiffs must show that the offender had intentional physical contact with the chattel and that the contact caused some substantial interference or damage. The courts that applied this common law doctrine into the digital world reasoned that electrical signals traveling across networks and through proprietary servers may constitute the contact necessary to support a trespass claim.
Applying this common law action to computer networks, plaintiffs must first prove that they received some type of electronic communication (typically bulk e-mail or spam) that the defendant intentionally sent to interfere with the plaintiff's interest in his or her property and second that this communication caused quantifiable harm to their tangible property, such as impaired functioning of the computer, network or server.
The Early Cases:
In the late 1990s, when the web was in its infancy, courts were more receptive to extending the trespass to chattels tort to the electronic context. In CompuServe Inc. v. Cyber Promotions, Inc., a 1997 case that was the first to extend the trespass theory to computer networks, a federal district court held that a marketing company's mass mailing of a high volume of unsolicited advertisement emails to CompuServe subscribers constituted an actionable trespass to chattels. CompuServe customers repeatedly received unwanted advertisements from Cyber Promotions, a company that specialized in sending marketing emails in bulk. Cyber Promotions also modified its equipment and falsified other information to circumvent CompuServe's anti-spam measures.
Due to the high volume of emails, CompuServe claimed damage to its servers as well as money lost dealing with customer complaints and dissatisfaction. CompuServe also extended its damages claim to its subscribers who spent time deleting unwanted emails. The court held that Cyber Promotions's intentional use of CompuServe's proprietary server was an actionable trespass to chattels and granted a preliminary injunction enjoining the spammer from sending unsolicited advertisements to any email address maintained by CompuServe. Cyber Promotions' persistence in sending emails to CompuServe's servers after receiving notification that CompuServe no longer consented to the use weighed in favor of a finding of trespass.
A trio of 1998 cases in the Eastern District of Virginia involving America Online firmly established the use of the trespass to chattels tort as a spam-fighting tool. In America Online, Inc. v. IMS, the court held that the owner of a marketing company committed trespass to chattels against an Internet service provider's (ISP) computer network by sending 60 million unauthorized email advertisements to the ISP's subscribers after being notified that the spam was unauthorized. The court found that the defendant, intentionally and without authorization, caused contact with the plaintiff's computer network by sending bulk email messages. Such contact injured the plaintiff's business goodwill and diminished the functioning of its computer network.
Similarly, in America Online, Inc. v. LCGM, Inc., a company engaging in pornographic website advertising sent a deluge of spam to AOL's customers, and, in so doing, also forged the AOL domain name in an effort to trick customers into opening the emails. The court once again held that a website operator’s transmission of unsolicited bulk emails to customers of an ISP, using the provider's computers and computer network, constituted trespass to chattels.
In America Online, Inc. v. Prime Data Systems, Inc., the defendants sent millions of spam emails to AOL subscribers advertising computer software programs designed to facilitate bulk emailing by allowing users to harvest email addresses from the plaintiff's member directories, chat rooms, and electronic bulletin boards. The defendants also used technology designed to avoid AOL's spam filtering mechanisms. The defendants frequently used false and deceptive "headers" in email messages to make it appear as if AOL had sent the messages. The increased demand on AOL's servers resulting from the spam caused substantial delays of up to twenty-four hours in the delivery of all emails to AOL members, forcing AOL to temporarily stop accepting any new messages. As the spam problem grew worse, AOL had to purchase millions of dollars worth of additional equipment to increase the capacity of its servers to handle the volume of emails. The court held that this activity constituted a trespass to chattels and awarded injunctive relief, reasonable attorneys' fees and costs, as well as damages.
Extension of the Theories for Protecting Internet Resources:
Since the early spam cases, courts have extended the electronic trespass to chattels theory even further to encompass screen-scraping and other data "harvesting." Screen-scraping is the practice of taking information from another website, generally through the use of search agent software, and "harvesting" the data for one's own commercial use. Travel websites frequently used this tactic to offer a variety of options and prices gleaned from various airlines' sites. Because the courts have entertained such litigation, some companies have specifically banned this conduct in their terms and conditions statements.
In eBay v. Bidder's Edge (2000), eBay successfully used the trespass to chattels tort to prevent Bidder's Edge from employing spiders to cull information about its auctions to display on its own website. Although Bidder's Edge's robots only consumed a small percentage of eBay's computer resources, the court noted that the plaintiff need not demonstrate current substantial interference as conduct which constituted use of another's property is enough to sustain a trespass to chattels claim. In light of this, the court found that eBay had demonstrated a sufficient likelihood of future injury to warrant granting a permanent injunction: "If the court were to hold otherwise, it would likely encourage other auction aggregators to crawl the eBay site, potentially to the point of denying effective access to eBay's customers."
Register.com, Inc. v. Verio, Inc. (2000) is a further example of this temporary trend in which plaintiffs did not have to demonstrate any substantial interference. Register.com, a domain name registry service, sued competitor Verio for using Register.com's proprietary WHOIS look-up service to find potential leads among its customer base. The court found that, by continuing to access Register.com's online customer database after being told to stop, Verio was trespassing on Register.com's WHOIS server. Register.com had specifically withdrawn its consent to Verio's use of search robots to review Register.com's customer list. The court held that Verio caused harm to Register.com's files through the use of these search robots and that the searches improperly taxed Register.com's server capacity.
These holdings gave the court license to expand the applicability of trespass to chattels to computer networks even further. In Oyster Software v. Forms Processing (2001), the Northern District of California determined that a plaintiff need not demonstrate any physical interference with a server at all to sustain a trespass to chattels claim and consequently denied the defendant's motion for summary judgment, even though there was no evidence of damage to the plaintiff's computer system. Although Oyster conceded that there was no evidence that the defendant's activities had interfered in any way with the functioning of Oyster's computer system, the court nonetheless denied FPI's motion for summary judgment. According to the court, following the decision in eBay, plaintiffs only need to demonstrate that the defendant's actions "amounted to a 'use' of Plaintiff's computer," and the court determined that copying the metatags amounted to a use.
These cases indicate that, at least in California, a plaintiff did not have to demonstrate any kind of actual interference with the computer system to successfully claim trespass to chattels.
The Retreat from Chattel Theory Tort's Expansion:
Increasingly the courts retreated from the expanding doctrine now limiting tort claims for electronic trespasses, most especially now requiring that the injured party must prove tangible damage to their property.
The Supreme Court of California reversed the trend exemplified by Oyster in the case Intel Corp. v. Hamidi (2003), reaffirming the need for a demonstration either of actual interference with the physical functionality of the computer system or of the likelihood that this would happen in the future. Although Intel conceded that Hamidi's emails caused neither physical damage nor any disruption to their computer system, they alleged that the economic productivity lost due to the disruption caused by the emails could sustain a trespass claim. The Supreme Court of California disagreed, holding that the tort does not extend to claims in which the electronic communication involved "neither damages the recipient computer system nor impairs its function." In reaching this conclusion, the court criticized the understanding of eBay advanced in Oyster, explaining that previous cases in which courts have found trespass to chattels in the electronic setting have involved either "actual or threatened interference with the computers' function." To that effect, the California Supreme Court held that the court in Oyster misconstrued the holding in eBay; trespass requires more than use a use--it requires an actual or threatened interference with the physical functionality of the system.
California, as one of the jurisdictions most involved in internet development, may be setting the new approach but most states have yet to determine the applicability of the trespass to chattels theory. Of the courts that have considered it, they have applied Intel and required that the plaintiff demonstrate damage to the computer system. A supreme court in New York in School of Visual Arts v. Kuprewicz denied the defendant's motion to dismiss for failure to state a claim on the trespass to chattels claim because the plaintiff had alleged actual damage to the functionality of the computer system, which Intel requires; the defendant had sent enough e-mails that it reduced the computer system's functionality and drained the hard drive's memory. The Fourth Circuit in Omega World Travel, Inc. v. Mummagraphics, Inc. also followed Intel. However, this resulted in granting a motion for summary judgment for the defendant because the plaintiff did not allege any actual damage to its computer system. The court clarified that Oklahoma courts have yet to recognize the validity of a trespass to chattels claim based on an electronic intrusion into a computer system. Still, if it were to recognize it, the plaintiff would need to allege more than nominal damages, which in this case it had not.
Intellectual Property and Trespass to Chattels:
Although many commentators have expressed enthusiasm over the increasing "propertization" of intellectual property (that is to say, the increased application of real property doctrines to intangible property) and the extension of the trespass to chattels doctrine to computer networks, several detractors have expressed concern over the ramifications of extending the theory to protect electronic communications that do not actually damage the computer systems in question but only cause nominal damage due to their content. Primarily, these critics worry that extending trespass to chattels in this fashion would stifle free speech on the internet because any unwelcome email might constitute a trespass and may subject the sender not only to civil liability under the trespass theory but to criminal liability as well. This would presumably reduce people's willingness to communicate freely on the Internet and curtail the Internet's ability to function as an open, democratic forum.
In particular, it is argued that where the electronic communication is an email that contains speech that is of importance to the public and the communications do not hamper the functionality of the recipient's computer system, First Amendment free speech protections ought to outweigh the property right in the unharmed computer system. Similarly, critics have also expressed concerns that plaintiffs have employed the doctrine to stifle legitimate competition.
Critics of the theory's extension to computer networks also note greater theoretical problems with the applicability of a real property theory to intellectual property. To explain why real property theories might extend to the Internet, proponents equate "cyberspace" with real land, arguing that owners of computer servers should have the same right of inviolability as owners of land receive to promote greater efficiency in transactions. However, even if some aspects of cyberspace resemble real space, others contend that cyberspace is not like real land at all because "the 'placeness' of cyberspace is a matter of ongoing social construction." Furthermore, even if granting property rights might help to avoid problems of inefficiency and under-cultivation in the context of real property, critics note that nothing suggests that the same principles would also be effective in the context of computer networks—especially because the problem of under-cultivation does not tend to occur online.
Defenses to Trespass to Chattels
Typical Defenses:
Consent: If the Owner Gave Express or Implied Permission
Whether explicit or implicit, consent can be a defense against trespass to chattel claims. If the property’s owner has permitted someone to use or interact with their property, that permission negates a trespass claim.
Example: You loan your boat to a friend who damages it. You might have a claim based on negligence but not on trespass to chattels since he had permission.
Ownership or Right to Possess: Asserting Your Ownership
If one can demonstrate that one owns the chattel in question or has a lawful right to possess it, this could be a complete defense to the trespass claim. Ownership rights override the trespass claim, while lawful possession can also be justified.
Necessity: If Trespassing Was Essential to Prevent Greater Harm
Though rare, the defense of necessity might apply if trespass to chattel was required to prevent a more significant harm or danger. This defense considers the broader context and whether the actions were reasonable and proportionate to the danger being averted.
Example: Imagine seeing a car with a dog locked inside on a hot day. If you believe the dog’s life is in danger, breaking the car window to rescue the dog could be considered trespass to chattel. However, if you are sued, the necessity defense could be invoked, as your actions were essential to prevent more serious harm.
Mistake: A Reasonable Belief in the Right to Use Property
If an individual reasonably believed they had the right to use or possess the chattel, it might serve as a defense to a trespass claim. This defense considers the defendant’s good faith and whether a reasonable person in their position would have acted similarly. Note that trespass to chattels is an intentional tort-one must intend to trespass. But also note that the belief must be “reasonable.”
Privilege: Acting Within Legal Rights or Duties
Sometimes, a person may be privileged to use or interfere with another’s chattel due to a legal right or duty. This could include actions by law enforcement or other authorized persons acting within the scope of their authority.
Abandonment: Property Was Abandoned by the Owner
If the owner has abandoned the property, using or possessing it may not be considered trespass. Abandonment requires evidence that the owner intended to relinquish all rights to the property and left it in a manner consistent with that intention.
Conclusion:
While actual tangible harm must be proven even under the current trespass to chattels doctrine in California, it is still a powerful tool available for those wishing to protect their online and intellectual property assets. It is perhaps a tribute to the common law doctrines in existence for the last five hundred years that this theory of law can be held applicable to the latest innovations of the mind.