JAI NARAIN VYAS UNIVERSITY, JODHPUR

MOOT COURT REPORT

CYBER LAW, INFORMATION TECHNOLOGY AND SPACE LAW

2018-19

MEMORIAL ON BEHALF OF PETITIONER

in

EXPERT BENEFIT INC.

v.

CYBER ADVOCACY

Submitted by: Submitted to:

SHREYA PATWA MR. NITYASH SOLANKI
(BA-L.L.B VIII t h sem)
Issue :
1. It is beyond dispute that an individual has the right to have his personal
property free from interference. Whether this common law principle
should be extended to cover, as a trespass to chattels, and otherwise
harmless electronic communication whose contents are objectionable?
Whether a harmless damage trespass supports a claim for nominal
damages?

2. The broader question is whether the idea of trespass should be applied to

information technology cases ? Whether Expert Benefit Inc. has a viable
claim for trespass to personal property ?

Rule : Trespass to chattels; 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 a quantifiable harm to their tangible property, such as
impaired functioning of the computer, network or server.

Analysis :
With the exponential growth of the Internet over the course of the last
decade, courts and legislatures around the world have been forced to
evolve legal principles to govern interactions in cyberspace. While a large
number of these principles were original and developed de novo for the
Internet, a significant number involved applying the extant body of legal
rules to the virtual world. Owners of Internet resources think of their
system as their own little claims in cyberspace, which must be protected
against the typical encroachment that we find in the physical property
world.
The doctrine of cyber trespass emerged in this context, with the courts'
application of the common law cause of action of trespass to chattels to the
Internet. Reasoning that electronic interferences with server space
constituted a tangible invasion.
In the late 1990s, when the World Wide 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, 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 email 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 email,
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
email.
On the basis of the plaintiff's allegation, the court found two types of
damage to exist. The first was that the multiple email messages occupied a
large amount of disk space on the plaintiff's servers and were a drain on
their processing power. This, according to the court diminished the value of
the equipment to the plaintiff, even though there was no physical damage.
The second form of damage, according to the court lay in the fact that since
the defendant's emails were directed through the plaintiff's servers at the
plaintiff's customers, it had caused several of these customers to complain
about the plaintiff's very service. Consequently, the court found this to be
an interference with the plaintiff's reputation and goodwill, a legally
protected interest, actionable under the doctrine.

Thus 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.

In case Tyco International (US), Inc v. Does, the defendants had loaded the
plaintiff's servers with over 30,000 email messages and were restrained
from continuing their activities, under the doctrine of trespass to chattels.
Interestingly, the court here awarded the plaintiff nominal compensatory
damages of $1. The court based this award on the reasoning that the
plaintiff had failed to demonstrate or claim any loss or damage to its
systems as a result of the defendants' actions." Therefore yes a harmless
trespass supports a claim for nominal damages.

Conclusion :
Firstly, as seen from above discussion and with general perception it is well
spelled that website providers are knee to boss there webpage as one boss
over its property in real world i.e to say one wants to protect its right and
privileges of enjoyment and ruling over his property in virtual world also
against the unauthorized interference in his possessory interest over his
property. Hence the common law principle that an individual has the right
to have his personal property free from interference should be extended to
cover as a trespass to chattels to electronic communication or to say yes
the idea of trespass should be applied to information technology cases.

Secondly case Tyco International (US), Inc v. Does explained that nominal
damages can be claimed by the person (whose possession was interfered
with) even if no damage or harm was caused to his property in such
trespass by other person.

Lastly and importantly, yes Expert Benefit has viable claim to trespass to
property as its clear from the fact that Cyber Advocacy's act of sending
substantial volume of spam/unauthorized e-mail to Expert Benefit Inc's
proprietary computer equipment, subscriber and employees led to
interference; which diverted employees from productive tasks in order to
review and delete Cyber Advocacy's messages and also undermined the
utility of the entire computer system.
Issue : Whether unauthorized robotic data collection from a company's publicly
accessible website is a trespass on the company's computer system?

Rule : Screen scraping and data harvesting; 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.

Analysis :
The present issue can be clearly assessed by reading precedent "eBay Inc.
v. Bidder's Edge Inc." wherein it was held that; the defendant’s
unauthorized use of a “software robot,” which is a computer program that
functions throughout the Internet to gather information on others’
WebPages. Despite the plaintiff’s requests for the defendant to cease its
activities, the defendant in Bidder’s Edge used the robot to “crawl” the
plaintiff’s website to compile information for inclusion in its own database.
The court held that trespass to chattels is actionable where there is an
“intentional interference” with the possessory interest of another’s
personal property. The court found that electronic signals sent by an
individual to gather information from another’s server or computer system
are tangible enough to support the plaintiff’s trespass action.

Conclusion :
Yes, unauthorized robotic data collection from a company's publicly
accessible website is a trespass on the company's computer system, as
website's server are private property which with conditions are made
accessible to public. Therefore interference done into the server by robotic
collectors is interference into possessory property interest leading to
trespass.
Issue : Explain the idea of property interest enshrined in cyberspace?

Rule : Property Interest Rule

Analysis :
Technically Cyberspace means "the notional environment in which
communication over computer networks occurs." But with the evolution in
use of Internet and its services has strangely dedicated "cyberspace" as a
new place; morely like a bunch of connections between places like we
"visit" websites and then we "leave" them and "go to" others, we meet
people "on the internet etc." Cyberspace has became a global asset of
incalculable value.

The Internet, initially visualized as a commons-based network was coming

to be controlled extensively through private monopolies, operating through
property rights. Thinking of cyberspace as a place has led judges,
legislators, and legal scholars to apply physical assumptions about property
in this new, abstract space. Owners of Internet resources think of their
system as their own little claims in cyberspace, which must be protected
against the typical encroachment that we find in the physical property
world.

Conclusion :
Website servers constitute the property of the website provider. The
Internet is connected to physical objects, such as website servers, and
website providers have legitimate business interests in excluding others
from their virtual space. As a result, the rule is applied to grant website
providers property rights in the context of the Internet.
Issue : Whether quality or value of personal property of Expert Benefit Inc. could
be "diminished even though it is not physically damaged by Cyber Advocacy's
conduct" ?

Rule : Intermeddle with a chattel in the possession of another.

Analysis :
In recent decades, courts have revived the common law doctrine of
trespass to chattels to address the growing problem of unsolicited Internet
communications. Trespass to chattels applies to actions that either
“dispossess another of the chattel” or “use or intermeddle with a chattel in
the possession of another.” “Intermeddling” re- quires intentional physical
contact, and courts have held that electronic signals are sufficiently
physically tangible to satisfy this requirement. In 1997, CompuServe Inc. v.
Cyber Promotions, Inc., court held that the bulk sending of unsolicited
email, or “spam,” sufficiently interfered with an email server’s processing
power and storage space to diminish the server’s value, and that the email
server’s owner could thus sustain a cause of action for trespass to chattels.
Further, the court held that the victim could sue for non-physical damages
caused by such a trespass.

Conclusion :
Now as seen that Cyber Advocacy is engaged in the course of conduct of
transmitting a substantial volume of electronic data in the form of
unsolicited e-mail to Expert Benefit Inc. proprietary computer equipment,
subscriber and employees. And that such electronic signals/unsolicited e-
mail's are sufficiently physically tangible to satisfy the requirement of
Intermeddling with a chattel in the possession of another, leading that
accused can be sued for non-physical damage caused by such trespass.
Therefore quality or value of personal property of Expert Benefit Inc. could
be diminished even though it is not physically damaged by Cyber
Advocacy's conduct.
Issue :
I. Whether Expert Benefit Inc. is entitled to injunctive relief to protect its
property?
II. Should a showing of harm be required for Expert Benefit Inc. to secure
injunctive relief? What kind of "harm" should count for this purpose?

Rule : Injunctive relief; also known as an “injunction,” is a legal remedy that may
be sought in a civil lawsuit, in addition to, or in place of, monetary damages.
Rather than offering money as payment for a wrong in a civil action, injunctive
relief is a court order for the defendant to stop a specified act or behavior.

Analysis :
I. 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 24 hours in the
delivery of all email 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 email. The court held that
this activity constituted a trespass to chattels and awarded injunctive relief,
reasonable attorneys' fees and costs, as well as damages.

II. In eBay v. Bidder's Edge (2000), the court noted that the plaintiff need not
demonstrate current substantial interference as conduct which constituted
 a 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.

In Oyster Software, Inc v. Forms Processing, Inc, the defendant had made
use of the plaintiff's trademark name in its metatags, thereby causing
search engines to link to the wrong site. In dealing with the plaintiff's claim
that the defendant's actions constituted a trespass to chattels, the court
concluded in express terms that after eBay, in relation to electronic
trespass, the law no longer required a showing of substantial interference
and that a minimal element of possessory interference or 'use' would
suffice to establish the claim.

Conclusion :
I. Now as Cyber Advocacy is transmitting a substantial volume of electronic
data in the form of unsolicited e-mail to Expert Benefit Inc. proprietary
computer equipment, subscriber and employees. Cyber Advocacy
continued such practice even after repeated demands by Expert Benefit
Inc. to cease and desist. Cyber Advocacy deliberately evaded Expert Benefit
Inc. affirmative efforts to protect its computer equipment from such use.
Expert Benefit Inc., asked Cyber Advocacy to stop sending them unsolicited
e-mail messages, and engaged in technical self-help in an attempt to block
the messages by Cyber Advocacy. Cyber Advocacy used techniques similar
to those of spammers to circumvent Expert Benefit Inc. self-help. The time
required to review and delete Cyber Advocacy's messages diverts
employees from productive task and undermined the utility of the entire
computer system.
Looking at the above analysis through precedent America Online, Inc. v.
Prime Data Systems, Inc., having similar circumstances it is unambiguous
that Expert Benefit Inc. is entitled to injunctive relief to protect its property.
II. As laid down in Oyster Software, Inc v. Forms Processing, Inc in light of
eBay v. Bidder's Edge it is clear that no substantial interference/actual
harm is required to be shown to claim injunctive relief, and that a minimal
element of possessory interference or 'use' would suffice to establish the
claim. Therefore Cyber Advocacy's intentional use of Expert Benefit Inc's
proprietary server was an actionable claim to grant injunction enjoining the
spammer from sending unsolicited advertisements to any email address
maintained by Expert Benefit Inc.
Issue : In what ways one could find the analogy to trespass to chattels useful, or
not useful? Whether Cyber Advocacy's intentional use of Expert Benefit Inc.'s
proprietary interest in computer system exceeds Expert Benefit Inc.'s consent
and, indeed, continued use after repeated demands that Cyber Advocacy's cease
is an actionable trespass to Expert Benefits Inc.'s chattel?

Rule : Policies of property rights leading to usefulness of trespass to chattels

Analysis :
Property rights are the products of policies, such as maintaining the
legitimate business practices of commercial enterprises, whether they are
individual or collective efforts. Website providers should be able to use,
possess, and dispose of their webpages in any manner they see fit as a
general function of the classic definition of property interests. This has
been a basic utility of the concept of property since property rights first
began to take shape.

Website providers have particular and unique interests in seeing the data
files that make up its webpage arranged in a certain way on users’
computer screens. While many website providers may have personal or
social motivations for creating a webpage, providers of online businesses
especially have a need for property rights in their webpages.

In Register.com, Inc. v. Verio, Inc., the Second Circuit upheld the

application of New York’s trespass to chattels doctrine to repeated bulk
queries of a public database. The court in Register.com based its decision
on the fact that the defendant’s continuous, automated behavior
“consumed a significant portion of the capacity of Register’s computer
systems” and thus “impaired their condition, quality, or value.” Some
courts have also followed this reasoning and broadened the application of
the trespass to chattels doctrine to even intangible damage to computer
servers.
Conclusion :
Recognition of the basic intangible property right in an Internet webpage
would allow website providers to protect their interests, business or
otherwise, as a matter of public policy. Courts that have addressed trespass
to chattels claims have recognized the property interests of individuals and
entities on the Internet to implement policies such as facilitation of
business and commerce in cyberspace. Website providers should be able to
virtually exercise property rights on their webpages for the very same
policy reasons. Therefore the analogy to trespass to chattels is useful.

All hereinbefore analysis presented in this moot channelized by various

precedents, it is undoubtedly clear that Cyber Advocacy's intentional use of
Expert Benefit Inc.'s proprietary interest in computer system exceeds
Expert Benefit Inc.'s consent and, indeed, continued use after repeated
demands that Cyber Advocacy's cease is an actionable trespass to Expert
Benefits Inc.'s chattel.
Issue : Do information technology cases involve a new kind of harm, or do they
simple raise old legal issue dressed up in high-tech packaging?

Rule : Harm involved in Law of Tort of Trespass to chattels expanding to

Information Technology cases.

Analysis :
The trespass to chattels tort punishes anyone who substantially interferes
with the use of another's personal property, or 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 imported 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 a quantifiable harm
to their tangible property, such as impaired functioning of the computer,
network or server.

Conclusion :
Information technology cases does not involve new kind of harm, and they
have simply raised old legal issue dressed up in high-tech packaging i.e they
have consciously converted electronic signals as tangible harm and that
such kind of unauthorized interference through electronic signals can be
used to claim trespass to chattels.
Issue : Are there other available ways, short of legal action, for Expert Benefit
Inc. to stop Cyber Advocacy ?

Rule : Firewall

Analysis :
A firewall is a network security system that monitors and controls incoming
and outgoing network traffic based on predetermined security rules. A
firewall typically establishes a barrier between a trusted internal network
and untrusted external network, such as the Internet.

Firewalls are often categorized as either network firewalls or host-based

firewalls. Network firewalls filter traffic between two or more networks and
run on network hardware. Host-based firewalls run on host computers and
control network traffic in and out of those machines.

Conclusion :
The system administrator, charged with constructing and maintaining the
system-level firewall, is in the best position to protect security and privacy
through use of that firewall. The firewall prevents infiltration of the system
not only by shielding it from viruses spreading across the Internet but also
by shutting out hackers set on either sabotaging the system or accessing
individual files and e-mail records.
Issue :
What kind of "self-help" alternatives are open to block Cyber Advocacy's e-mails
by Expert Benefit Inc.?

Rule : Self-help alternatives to block spam by providing guidelines (Do's and

Don'ts) to Expert Benefit Inc's subscribers and employees

Analysis :
Take Precautions

 Use a complicated email username. Spammers' software will look for the
easy and obvious addresses first, such as those with identifiable names like
"john1977@hotmail.com," as opposed to "sjk839@gmail.com."

 Preview your messages before you open them. Outlook (and many other
email clients) let you use a preview mode to peek at the contents of a
message before you actually open it. To do this in Outlook, go to the View
menu and select Reading Pane. Instead of double clicking a message, click it
once to select it and you'll see the message displayed in the Reading Pane.

Think Before You Click (or Reply, or Forward)

 Never, ever reply to a spam message. This includes buying a product that is
for sale or clicking the often-misunderstood "unsubscribe" link, which
actually informs your spammer that you exist. If you can tell from the
subject line that a message is spam, don't open it — delete it. Spam subject
lines typically promise you a more youthful appearance, prescription drugs
without a doctor's approval etc. They also use attention-demanding
punctuation, such as exclamation marks or all caps.

 Don't click any links in a spam email. Spammers often have multiple,
unique pages on their sites. Often, when you click a URL in a spam message,
this tells the spammer that you — and only you — received the message he
or she sent. It's another way for the spammer to figure out you actually
exist.
  Don't forward an email from someone you don't know to a list of
people. You remember those "forward this email to 20 of your friends"
messages? They are perfect for spammers to harvest email addresses, even
if the sender of the original email did not have this intent. These types of
sign-and-forward emails often appear in the form of a petition — and they
don't work.

Monitor Your Settings, Report Suspicious Behavior

 Use a spam filter

 Make sure your privacy settings are set so you don't receive marketing
from other sites Many listservs use Yahoo lists as the list provider; you
must unselect these pre-selected choices in your personal privacy settings.

Conclusion :
The above provided guideline is an alternative to self-help that Expert
Benefit Inc could apply through guiding its subscribers and its employee's
how to manage or avoid or block spam/unsolicited e-mails not only just by
Cyber Advocacy but also for similar kind of unauthorized interference.