Is Yahoo! Illegal?

In order to provide a coherent view of the web, Yahoo, Google, Inktomi, and all other web search engines or indexes have to enter your site and “steal” your property.

They work at night, either hunched over keyboards or using automated “spider” programs. Right now they may be inside your site, cataloging your intellectual property and offering access, for their profit, to everyone else.

If they’re doing so, shout “hallelujah” because traffic will soon be coming your way.

U.S. District Judge Ronald Whyte thinks that’s illegal. He thinks it amounts to trespass and violations of the Computer Fraud and Abuse Act.

Whyte ruled in the case of eBay vs. Bidder’s Edge It’s a preliminary injunction, but if it holds up on appeal, it will destroy the web as we know it.

Bad cases make bad law, and to be fair, eBay has a little right on its side. Bidder’s Edge doesn’t just link to its database, but collects it, holding it inside its own site. To keep its index current, Bidder’s Edge searches eBay so extensively it can slow other users’ searches, and the traffic costs eBay money to handle. The eBay database is also very dynamic, changing radically from day to day.

But Google (and the other search engines) can’t properly index my site without spending considerable time inside it, and can’t catalog the web if it needs permission upfront from every webmaster.

The dynamism of the eBay database, and the extensive use Bidder’s Edge has to make of it to provide its service, did move some reporters, like Chip Dembeck of EcommerceTimes, to take eBay’s side when the decision was announced. On the other hand, the U.S. Department of Justice is investigating eBay’s actions against Bidder’s Edge, wondering if they’re being anti-competitive.

In spinning this case, eBay has been very strategic. Before going to Whyte, it signed “link licenses” with such sites as AuctionRover. At the point of a legal gun, these sites agreed to pay eBay for linking to part of the public Internet.

The eBay story then changed subtly. Note the clever spin given in CNNFN’s story on the case eBay sued “to prevent its auction listings from being copied by other web sites without its permission.” (Place your emphasis on the word “copied.”)

But to me, this is a distinction without a difference. Any site can protect its “proprietary material” by placing it behind a firewall, by insisting on entrance through a password, or by charging for it. But eBay has done none of these things, nor would it be in eBay’s interest to do so.

Instead, eBay has left the door to its data vault wide open, placing it on the public Internet, and then sued when someone walked through that door and helped themselves to it. Worse, a judge has agreed with them.

My guess is this is just one of several legal idiocies we’ll see in the next few years, as clueless judges get bamboozled by arrogant lawyers anxious to place pre-web rules on the World Wide Web. But I think the principle should be simple. I don’t link to stories inside the WSJ.com or AOL firewalls because they charge for access. If you leave it public, I’ll link to it.

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