CompuServe v. Cyber Promotions

Citation: CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997).

The court held that CompuServe had demonstrated a likelihood of success on the merits that defendants had trespassed on the CompuServe computers by continuing to send junk e-mail to CompuServe e-mail addresses, after having received repeated requests from CompuServe to stop doing so.

The court acknowledged that CompuServe's e-mail system permitted subscribers to receive communications from those located anywhere on the Internet, and therefore, “there is at least a tacit invitation for anyone on the Internet to utilize [CompuServe's] computer equipment to send e-mail to its subscribers.” However, as a result of CompuServe's policy prohibiting the use of its service to send unsolicited commercial e-mail, the court found that the defendants “have used [CompuServe's] computer in a fashion that exceeds that consent” and that “[t]he use of personal property exceeding consent is trespass.”

The court rejected the defendants' First Amendment claim, holding that CompuServe:


 * “is physically the recipient of defendants' messages and is the owner of the property upon which the transgression is occurring. . . . [CompuServe] is not a government agency or state actor which seeks to preempt defendants' ability to communicate but is instead a private actor trying to tailor the nuances of its service to provide the maximum utility to its customers.


 * “Defendants' intentional use of plaintiff's proprietary computer equipment exceeds plaintiff's consent and, indeed, continued after repeated demands that defendants cease. The First Amendment to the United States Constitution provides no defense for such conduct.”