This post is a plug for an article that I’ve recently completed with my colleague Michael Carrier at Rutgers-Camden. The article is here. It is very short (for a law review article — 36 pages) and is our best effort to decisively end to the doctrine of “cyberproperty,” a.k.a. “cybertrespass,” a.k.a. the Internet variant of trespass to chattel doctrine.
Though this article doesn't explicitly mention it, cyberproperty doctrine has some interesting connections with virtual property and virtual worlds -- below I'll explain what cyberproperty is and how it relates to the concept of virtual property.
What Cyberproperty Is
Cyberproperty is a modified version of trespass to chattel doctrine. Trespass to chattel is a traditional property tort doctrine that protects personal (chattel) property from damages short of conversion. So, e.g., denting the fender of someone’s car might constitute a trespass to chattel. In America, the tort has always required a plaintiff to prove actual damage in order to state a claim. So you can certainly sue someone for denting your car, but you can’t sue someone for simply touching it or shining a flashlight on it (at least not under a trespass to chattel theory).
However, in the past decade, state and federal courts have created a new Internet doctrine of trespass to chattel that essentially waives the traditional damage requirement and enables courts to enjoin electronic contact over computer networks without any evidence of damage. If you think about it at all, modifying the law for networked contact this way is absolutely bizarre — networks, unlike traditional chattels, only function through contact with other machines. Trespass to chattels (TTC) can essentially outlaw the ping.
As Dan Burk once said in his early and influential attack on the doctrine, the modified TTC doctrine would even seem to permit a person to sue a television broadcaster for sending unwelcome advertisements to a home tv set. Yet TTC has had several vigorous advocates, including, perhaps most notably and vociferously, Richard Epstein.
I have some personal history with this rather strange doctrine. A few years ago, when I was a litigator, I had the opportunity (with Bill McSwain) to represent Ken Hamidi in his struggle to communicate with the employees at Intel. Intel sued Hamidi in California state court, claiming that it had a right to enjoin Ken from “trespass” on its mail server (a.k.a. sending email messages to its employees). Amazingly, the trial court granted the relief to Intel and, on appeal, the California Court of Appeal again sided with Intel, rejecting Hamidi’s First Amendment defense.
To make a long story short, when the California Supreme Court took up the case, Ken prevailed (over some spirited dissents). Today, in California, the Internet version of trespass to chattel is something close to the traditional version of trespass to chattel — proof of actual damage to the chattel (the computer) is required. Since state common law governs the tort doctrine, Hamidi essentially overrules the prior California state and federal court TTC decisions, most notably the decision in eBay v. Bidder’s Edge (insofar as it conflicts with Hamidi).
Yet even post-Hamidi, cybertrespass has survived. In addition to making occassional affirmative appearances in recorded opinions (e.g. Sotelo v. DirectRevenue), I’ve seen cybertrespass claims showing up quite frequently in pleadings. Just a couple weeks ago, the Legal Intelligencer even carried an article that suggested cyberproperty lawsuits would be the next big thing. I certainly hope not.
The goal of our article is simply to explain succinctly why cyberproperty doctrine makes no sense. In short, Mike and I think that it is a ridiculously unbalanced property right, that no existing property theories can justify it, and that the existing prohibitions against spam, electronic invasion, and copyright infringement are superior to an unchecked common law right that seriously threatens competition and free speech.
How Cyberproperty Relates to Virtual Property
So by opposing cyberproperty rights and endorsing (in some case) virtual property rights, am I being inconsistent? I don't think so.
The terms "cyberproperty" and "virtual property" seem like they could mean the same thing, but they've evolved in very different contexts. The cyberproperty right, as I've explained, is essentially the grant of a supercharged exclusionary right to the owner of a networked machine. Traditional property rules require proof of actual damage if a person claims that someone has touched something that they own. But with cyberproperty, where the chattel is a computer, the doctrine throws that traditional limitation out the window and permits courts to enjoin electronic contact regardless of whether damage is proven. So cyberproperty takes a standard exclusionary right that accompanies personal property and makes it even stronger.
Virtual property, on the other hand, is typically understood as a cross-cutting right, somewhat like a servitude. It is premised on the fact that someone else owns the property in question. It seems essential to the concept of virtual property that the party that asserts a virtual property claim is not the owner of the chattel on which the data at issue resides.
So, essentially, virtual property is the mirror image of cyberproperty -- whereas cyberproperty would accord additional legal powers to the owners of chattels, virtual property recognition would effectively decrease the powers that accompany ownership of a chattel. Whether or not courts extend virtual property rights to virtual worlds eventually, they have already been extended to domain names by Judge Kozinski in Kremen vs. Cohen, and statutes like the Computer Fraud and Abuse Act can operate in ways that seem to acknowledge virtual property interests.
Why do I see virtual property as a growth area? My general impression is that, as popular investments in the networked environment increase, as more of our important data moves from PCs to distant server farms, and as our daily activities are increasingly recorded and archived by others, we'll see much more pressure for the law to recognize virtual property rights, i.e., cross-cutting rights of access and control that are granted to individuals that are not the owners of the networked physical chattels at issue.
By the same token, I think cyberproperty doctrine is a throwback idea, essentially retrogressive in the Internet Age. Today, the owners of servers are well-protected--perhaps even slightly over-protected--by the tools in the existing legal system. They also enjoy substantial technological powers. Concentrating an additional and radical legal exclusionary power based on server ownership seems like a very bad idea.