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RIGHT TO EXCLUDE – CompuServe,
Inc. v. Cyber Promotions, Inc. (1997)
U.S. District Court, S.D. OH
962 F. Supp. 1015
Author: ERL
Procedural Posture: case is
at trial court.
Facts:
P received many complaints from its paying subscribers about spam
email, sent by D. P asked D to stop sending the
email. D did not. P adopted software to stop D’s
use of its servers to contact its subscribers. D
circumvented those restrictions. P asserts that actions of
D caused a slowing down of and placed an undue burden on their
computer servers. P filed for a preliminary injunction in
trespass to stop D from using its servers to send unwanted email
to its subscribers.
Issues:
Is D’s continued transmission of email to P’s computer
equipment (thus to its subscribers) subject to a preliminary
injunction in common law of trespass? >Yes.
Holding:
Injunction granted. Case is actionable.
Rationale:
Although D did not physically dispossess P of its software, it
impaired the functioning of that equipment, thus causing a loss
of value to P. D used P’s equipment in a manner that
exceeds consent, constituting trespass. CompuServe is not a
public utility, so it is not subject to ‘public forum’
argument of a common space (internet). P is not a
postmaster, and not a state actor, so First Amendment issue has
no bearing. Public interest is advanced if spam is limited,
whereas opposite is true if D prevails on 1st
Amendment issue, or case in general.
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