"I do see a problem," Judge Ronald Whyte said today in San Jose. "(What) Bidder's Edge was doing was potentially slowing down eBay servers and trespassing in a way that permission had not been granted."
eBay had asked for a preliminary injunction prohibiting Bidder's Edge from searching its site and displaying auction results.
Whyte didn't issue a ruling today. He said in open court that he is leaning toward issuing an injunction, but one that isn't as sweeping as eBay's request. Whyte didn't elaborate or say when he would rule.
eBay attorney Janet Cullum argued that searching and displaying amounts to trespassing, in addition to damaging eBay's servers and slowing down the site. She also said that the information retrieved was intellectual property and that it was often inaccurate.
Bidder's Edge denied that it had damaged eBay servers and said it schedules searches for off-peak hours.
"There's no question that the computers from eBay received some load from Bidder's Edge," Bidder's Edge attorney John Cotter said. But "the impact on eBay is very low."
Bidder's Edge, based in Massachusetts, has continued to search eBay's site. The company uses software to search other sites and collects full descriptions of items for auction. Bidder's Edge then displays brief descriptions and offers links to more detailed information.
A search can take from less than a minute to several hours, which eBay says burdens its computer systems and fails to ensure that information on the Bidder's Edge site is accurate.
eBay has said it is concerned that consumers are not getting the site's full experience through outside services.
While its suit focuses on the narrow issue of whether an outside site can comb its auctions, the dispute could have big implications for Internet openness. The controversy is already the subject of an inquiry by the Justice Department's antitrust division.
Bidder's Edge and other sites have claimed that if eBay prevails, the outcome could pose problems not only for auction portals, but for shopping services and general portals as well.