962 F. Supp. 1015, 1022 (S.D. Ohio 1997)
CompuServe Incorporated operates one of the major national commercial online computer services through a proprietary nationwide computer network that provides subscribers with access to its content and a link to the Internet for exchanging electronic mail. Defendants Cyber Promotions, Inc. and its president Sanford Wallace are in the business of sending unsolicited e-mail advertisements on behalf of themselves and their clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers.1
Over the past several months, CompuServe received many complaints from subscribers threatening to discontinue their subscriptions unless the company prohibited electronic mass mailers from using its equipment.2 In or around October 1995, CompuServe employee Jon Schmidt specifically told Sanford Wallace that he was prohibited from using CompuServe's equipment to send junk e-mail messages.3 CompuServe later posted an online policy statement declaring that it does not permit its facilities to be used by unauthorized parties to process and store unsolicited e-mail.45
Despite the notification, defendants sent an increasing volume of e-mail solicitations to CompuServe subscribers.6 CompuServe attempted to block the messages with software programs, but defendants modified their equipment and messages to circumvent the screening by falsifying the point-of-origin information in the headers, removing sender information, and configuring their servers to conceal their true domain name.7
CompuServe submitted affidavits from software developer Michael Mangino on the burden to its equipment, customer service manager Patrick Hole on receiving approximately 9,970 e-mail complaints in November 1996, and others documenting the evasion tactics.8 On October 24, 1996, the court issued a temporary restraining order, and following a hearing on December 15, 1996, the court considered CompuServe's application for a preliminary injunction to extend the order and enjoin defendants from sending any unsolicited advertisements to CompuServe subscribers.
Whether defendants' transmission of unsolicited bulk e-mail to CompuServe subscribers after notification to cease constitutes trespass to chattels?9
Trespass to chattels under Ohio law, informed by Restatement (Second) of Torts § 218, renders an actor liable if the chattel is impaired as to its condition, quality, or value or if harm is caused to some person or thing in which the possessor has a legally protected interest. Electronic signals are sufficiently tangible to support the claim, consent may be revoked by notice, and use exceeding the scope of consent constitutes an actionable trespass.10
Yes. CompuServe operates one of the major national commercial online computer services through a proprietary nationwide computer network that provides subscribers with access to its content and a link to the Internet for exchanging electronic mail.11 Defendants Cyber Promotions, Inc. and its president Sanford Wallace are in the business of sending unsolicited e-mail advertisements on behalf of themselves and their clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers.
Over the past several months, CompuServe received many complaints from subscribers threatening to discontinue their subscriptions unless the company prohibited electronic mass mailers from using its equipment. In or around October 1995, CompuServe employee Jon Schmidt specifically told Sanford Wallace that he was prohibited from using CompuServe's equipment to send junk e-mail messages. CompuServe later posted an online policy statement declaring that it does not permit its facilities to be used by unauthorized parties to process and store unsolicited e-mail.
Despite the notification, defendants sent an increasing volume of e-mail solicitations to CompuServe subscribers. CompuServe attempted to block the messages with software programs, but defendants modified their equipment and messages to circumvent the screening by falsifying the point-of-origin information in the headers, removing sender information, and configuring their servers to conceal their true domain name.
CompuServe submitted affidavits from software developer Michael Mangino on the burden to its equipment, customer service manager Patrick Hole on receiving approximately 9,970 e-mail complaints in November 1996, and others documenting the evasion tactics. On October 24, 1996, the court issued a temporary restraining order, and following a hearing on December 15, 1996, the court considered CompuServe's application for a preliminary injunction to extend the order and enjoin defendants from sending any unsolicited advertisements to CompuServe subscribers. Defendants' intentional intermeddling impaired the value of CompuServe's computer equipment and caused harm to its legally protected interest in business reputation and goodwill.12
Defendants' transmission of unsolicited bulk e-mail to CompuServe subscribers after notification to cease constitutes trespass to chattels.13
Whether the First Amendment protects defendants' right to send unsolicited commercial e-mail to CompuServe's computer systems?14
The First Amendment prohibits government abridgement of speech but does not shield private conduct. A private company is not transformed into a state actor by judicial enforcement of neutral trespass laws, and private property owners may restrict access to their systems without violating the First Amendment.15
No. CompuServe is a private company whose network, Internet access, and electronic mail services are not essential to society and do not occupy a monopolistic position. Defendants possess adequate alternative avenues of communication, including bulletin boards, web page advertisements, facsimile transmissions, and conventional mail. The mere fact that CompuServe connects to the Internet does not convert its private property into a public forum subject to First Amendment constraints.16
The First Amendment does not protect defendants' right to send unsolicited commercial e-mail to CompuServe's computer systems.17
Whether CompuServe demonstrated entitlement to a preliminary injunction extending the temporary restraining order and barring further unsolicited e-mail transmissions?18
A preliminary injunction is warranted upon balancing the likelihood of success on the merits, irreparable harm to the movant absent relief, the probability of substantial harm to others, and advancement of the public interest.19
Yes. CompuServe demonstrated a likelihood of success on its trespass claim. It established irreparable harm to business reputation and goodwill that cannot be adequately compensated by monetary damages. The injunction imposes minimal hardship on defendants, who retain alternative channels for their advertisements, and the public interest favors protection of private property rights against unauthorized intermeddling.20
CompuServe demonstrated entitlement to a preliminary injunction extending the temporary restraining order and barring further unsolicited e-mail transmissions.21