United States District Court, C.D. Illinois, Rock Island Division
For Fidlar Technologies, Plaintiff, Counter Defendant: Jason R Williams, SAWYIER & WILLIAMS, Chicago, IL.
For LPS Real Estate Data Solutions, Inc., Defendant, Counter Claimant: Christopher J Murdoch, Chelsea Ashbrook McCarthy, HOLLAND & KNIGHT LLP, Chicago, IL.
SARA DARROW, UNITED
STATES DISTRICT JUDGE.
Fidlar Technologies (" Fidlar" ) sued LPS Real Estate Data Solutions, Inc. (" LPS" ) under the civil-suit provision of the Computer Fraud and Abuse Act (" CFAA" ), 18 U.S.C. § 1030(g), and under the civil-suit provision the Illinois Computer Crime Prevention Law (" CCPL" ), 720 ILCS 5/17-51 (2011). Fidlar also alleged a common law trespass to chattels claim. Am. Compl. 11--14; ECF No. 31-1. LPS counter-claimed for various forms of tortious interference and sought declaratory and injunctive relief. Am. Counterclaim 13--30; ECF No. 19. The dispute between the parties rests on LPS's method of accessing real estate information that Fidlar helps counties digitize and make available online. Before the Court are LPS's Motion for Summary Judgment and Request for Oral Argument, ECF No. 77, and LPS's Alternative Motion for Partial Summary Judgment on Certain of Fidlar's Claims for Damages and Request for Oral Argument, ECF No. 79. For the following reasons, Fidlar's Motion for Summary Judgment is GRANTED. Because the Court grants this motion in its entirety, LPS's motion for partial summary judgment is MOOT.
Fidlar is a technology company that creates and licenses software to the county offices that maintain land records. Some of this software helps counties digitize their paper records by scanning images of the documents and indexing these images. Some of the software allows counties to make these records available over the internet. If counties wish to make the records available online, they can either host them on their own servers, or contract with Fidlar to host them on its servers. During the time period relevant to this case, the hosting of records using either method was accomplished using a group of software components, collectively called " Laredo," created by Fidlar.
Laredo consisted of a database which stored the index and image data gathered from paper land records; a " middle tier" ; and a user interface contained in a client. The middle tier was an intermediary between database and client, responding to the client's requests with images and information from the database. These requests were generally transmitted to the middle tier from a remote client, via the internet. They came in the form of " SOAP calls."
SOAP (Simple Object Access Protocol) is a protocol for exchanging information. A SOAP call consists of a " header," which contains information about the call, and a body, which contains the call itself. While SOAP calls can be encrypted at different levels, the calls used by the client to query the middle tier were not.
Fidlar made the client available on its website for people interested in accessing county land records. By downloading the client, remote users could download and view on their own computers land record information that counties had digitized. Regardless of whether Fidlar or the counties hosted the land record information, that information remained the property of the counties who granted users access to the information, often via written agreement and sometimes for a fee. Fidlar was not a party to these agreements. The client did contain an End User License Agreement (" EULA" ), written by Fidlar, that was packaged with the client software and was made available to users. In order to use the client, users had to accept the EULA's terms and conditions. See Fidlar Technologies Laredo End User License Agreement, Mem. Supp. Mot. Summ. J. Ex. 15, ECF No. 78-15.
LPS is a real estate data analytics company that gathers and sells information about real property. In pursuit of this mission, the company culls information from land records on a " vast scale." Resp. Mot. Summ. J. 2, ECF No. 82. LPS currently has agreements to access public land title information with about 2,600 county recorders' offices nationwide. Around 2010, LPS undertook an expansion effort, forming agreements with more counties. Marroquin Dep. 21--22, ECF No. 78-3. 82 of these were counties that made their land documents available online using Fidlar's services. LPS entered into arrangements with each of these counties to access their land records. Some counties used written contracts; others had sign-up sheets or other less formal means of arranging for access. Where counties priced access differently based on the number of minutes of time logged searching land records, LPS paid the counties the fee required for the maximum amount of time possible, or " unlimited" time.
LPS's preferred method of getting access to land records digitally, in non-Fidlar counties, was via file transfer protocol or some other means by which records could be grabbed en masse. For reasons that the parties dispute, but at the very least, to speed up the process of accessing and analyzing land records, LPS developed its own method of retrieving images through the middle tier in each of the Fidlar counties. To do this, LPS downloaded Fidlar's client, logged in using the identifying information given to it by a particular county, and searched for a land record. LPS then used a " traffic analyzer" to capture the SOAP calls that the Fidlar client sent to the middle tier. While the parties
disagree about whether the process that LPS used to analyze the captured calls might be described as " trial and error," it remains undisputed that by analyzing the content of the intercepted SOAP calls, LPS was eventually able to figure out what kind of information SOAP calls sent to the middle tier needed to contain so that the middle tier would respond with a particular land record. LPS then created its own client to generate SOAP calls, search the databases of the different counties, and download images of land documents. The parties sometimes refer to this process as " web harvesting." 
Whether by accident, design, or indifference, the LPS client's SOAP calls lacked the data necessary for the middle tier to track usage minutes on LPS's account, or to determine whether LPS had used the functionality of the Laredo client that permitted users to print documents they had downloaded. Thus, although LPS was generating many calls and downloading many land records, Fidlar and the counties contracting with it saw LPS's account as not logging any minutes, and not having printed any land records. There is no evidence that this volume of requests or their content hindered the operation of Fidlar or county servers.
Eventually, Fidlar and the counties discovered LPS's improvised method of accessing the middle tier, and litigation followed. Fidlar filed suit on March 11, 2013. ECF No. 1. LPS moved to dismiss, ECF Nos. 6, 35, filed a counterclaim, ECF No. 8, and moved for a temporary restraining order and preliminary injunction, ECF No. 9, to stop Fidlar from communicating negative things about LPS to certain counties. On November 8, 2013, the Court issued an order, ECF No. 42, denying the motion to dismiss and the motion for temporary restraining order and preliminary injunction. LPS moved for summary judgment on December 1, 2014. After the close of discovery, there was some dispute between the parties about the admissibility of evidence, particularly with respect to the report and testimony of one of Fidlar's experts, Dr. Ouri Wolfson, ECF No. 76-7, which LPS argued, ECF No. 75, had been untimely disclosed. On December 14, Magistrate Judge Hawley ruled that Fidlar could use Dr. Wolfson solely as a rebuttal expert against LPS's expert. Dec. 17, 2014 Hr'g Tr. 19--25, ECF No. 86-1.
I. Legal Standard on a Motion for Summary Judgment
Summary judgment is the " put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (internal quotation marks omitted). A court should grant summary judgment " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial--that is, whether there is sufficient evidence favoring the non-moving party for a jury to return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Patel v. Allstate Ins. Co., 105 F.3d 365, 370 (7th Cir. 1997). The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (citing Anderson, 477 U.S. at 255).
The movant in a summary judgment motion bears the initial burden of production--pointing the court to the materials in the record that " demonstrate the absence of a genuine issue of material fact" for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the nonmovant bears the ultimate burden of persuasion on a particular issue, however the requirements on the movant are " not onerous," and " may be discharged by showing--that is, point[ing] out to the district court--that there is an absence of evidence to support the nonmoving party's case." Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (internal quotation marks omitted). Once the movant discharges her burden, the burden shifts to the nonmovant to " make a showing sufficient to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322. To satisfy this burden, a nonmovant must " go beyond the pleadings . . . to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in her favor." Modrowski, 712 F.3d at 1169 (internal quotation marks omitted). " A plaintiff may not defeat the defendant's properly supported motion for summary judgment without offering any significant probative evidence tending to support the complaint." Tri-Gen Inc. v. Int'l Union of Operating Engineers, Local 150, AFL-CIO, 433 F.3d 1024, 1038 (7th Cir. 2006) (internal quotation marks omitted).
II. LPS's Motion for Summary Judgment
LPS moves for summary judgment on all three counts of Fidlar's Amended Complaint: Fidlar's CFAA claim, Am. Compl. 11--13, Mem. Supp. Mot. Summ. J. 27--40; Fidlar's CCPL claim, Am. Compl. 13--14, Mem. Supp. Mot. Summ. J. 40--44; and Fidlar's trespass to chattels claim, Am. Compl. 14, Mem. Supp. Mot. Summ. J. 44--45. The Court addresses each claim individually below.
A. Fidlar's Computer Fraud and Abuse Act Claim
1. Legal Framework
The CFAA, enacted in 1984, is " primarily a criminal statute designed to combat hacking." WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 201 (4th Cir. 2012). However, it grants the right to maintain a civil action to " [a]ny person who suffers damage or loss by reason of a violation of this section." 18 U.S.C. § 1030(g). Two provisions of the CFAA are relevant here. The first, § 1030(a)(4), applies to anyone who
knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period[.]
18 U.S.C. § 1030(a)(4). The second, § 1030(a)(5)(A) applies to anyone who " knowingly causes the transmission of a program, information, code, or command, and as a ...