business visitor

Nancy Christian was the tenant of an apartment whose lessors had been notified by her on November 1, 1963, that the knob of the cold water faucet on the bathroom basin was cracked and should be replaced. On November 30, 1963, plaintiff Rowland entered the apartment at Christian's invitation as a social guest and was injured while using the bathroom fixtures when the porcelain handle of one of the water faucets broke in his hand. The injury severed the tendons and medial nerve in Rowland's right hand. He incurred medical and hospital expenses, suffered loss of wages, and sustained damage to his clothing. Rowland later filed a complaint alleging that the bathroom fixtures were dangerous, that Christian was aware of the dangerous condition, and that his injuries were proximately caused by her negligence. Christian filed an answer containing a general denial except that she admitted telling the lessors the faucet was defective and should be replaced. She also alleged contributory negligence and assumption of the risk on the ground that Rowland had failed to use his eyesight and knew of the condition of the premises. Christian supported her motion for summary judgment with an affidavit stating that Rowland was a social guest who had used the bathroom on a prior occasion and that the handle broke while he was using the faucet. In opposition, Rowland filed an affidavit stating that immediately prior to the accident he told Christian he was going to use the bathroom facilities, that she had known for two weeks that the faucet handle was cracked, that she had warned the manager of the building of the condition but nothing was done to repair it, that she did not warn him of the condition, and that the handle broke when he turned off the faucet. The trial court granted summary judgment for Christian, and Rowland appealed.

eBay, Inc. operates an Internet-based person-to-person trading site that allows sellers to list items for auction and buyers to search listings and place bids directly with sellers. The site has over 7 million registered users, adds more than 400,000 new items daily, receives 10 million searches per day, and processes 600 bids per minute across nearly 3 million items. Users register by clicking an “I Accept” button on a seven-page User Agreement that prohibits robots, spiders, or other automated devices from monitoring or copying web pages without prior written permission. Bidder’s Edge, Inc., a 22-employee company founded in 1997, operates an auction aggregation site that compiles data from more than one hundred auction sites into its own database containing over five million items. When a user searches on the BE site, the site queries its database rather than the original host sites. Approximately 69 percent of the items in BE’s database come from eBay auctions, and BE estimates it would lose one-third of its users if it stopped covering eBay. In early 1998 eBay permitted BE to include Beanie Babies and Furbies listings. In April 1999 eBay verbally approved BE crawling the site for a 90-day period while the parties negotiated a licensing agreement, but they failed to reach terms. After BE briefly stopped posting eBay listings in late August or early September 1999 and then resumed in November, eBay sent a November 9 letter demanding that BE cease access, alleging trespass, and offering a license. eBay then blocked 169 IP addresses it believed BE was using; BE evaded the blocks by routing queries through proxy servers. BE sent eBay’s systems between 80,000 and 100,000 requests per day, accounting for 0.70 to 1.53 percent of eBay’s requests and data transfer during October and November 1999. eBay calculated alleged damages of $45,323 to $61,804 over ten months but did not identify specific incremental costs caused by BE. The motion for a preliminary injunction was heard on April 14, 2000.

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. 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.