Against Cyberproperty

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.


Comments on Against Cyberproperty:

Unggi Yoon says:

Belows is an simple arrangement of VP/CP/IP.

* against platform owners
Farmers v. Owners of MMO --> virtual Property v. CyberProperty

RMTers v. Owners of MMO --> VP v. IP(TOS wrapped)

Gamers v. Owners of MMO --> ip(TOS given) v. IP(TOS wrapped)


* among players
Farmers, RMTers v. Gamers in MMO --> VP v. ip/cp(TOS given)


* among owners
Developers of MMO v. Operators of MMO --> IP v. CP

* from outside
Hackers v. Owners --> vp v. IP/CP
Hackers v. Gamers --> vp v. ip
Hackers v. Farmers, RMTers --> vp v. VP

Posted Apr 16, 2008 6:34:42 AM | link

greglas says:

Unggi - thanks for spinning that out and throwing IP into the mix. I think in the virtual world context it is important to see that you've got all three kinds of rights: VP, IP, and CP. Of course, virtual property is still the most theoretical of the above!

With regard to how you've broke it down, yes, I think that makes sense. And, to add to that, I think where you've got "cyberproperty" indicated, you can include the full range of cyberproperty stand-ins that Mike and I discuss in the paper. So, e.g., systems owners can make trespass claims, but they might also make claims under the CFAA or CAN-SPAM if the facts are right.

My only quibble is with the last bit re the hackers. I think parties profiting (or not profiting) from software exploits might be inclined to deny any property rights at all if things are going their way -- just as developers will be inclined to resist VP if that generally goes their way (see Richard's recent post). I actually could see a situation, though, where a company might be inclined to claim that virtual property rights exist in response to hacking. (See, e.g., the Habbo furni theft.)

Posted Apr 17, 2008 1:05:43 PM | link

Unggi Yoon says:

Greg/

>>And, to add to that, I think where you've got "cyberproperty" indicated, you can include the full range of cyberproperty stand-ins that Mike and I discuss in the paper.

I understand that cyberproperty doctrine is a throwback idea, essentially retrogressive in the Internet Age.


>> I actually could see a situation, though, where a company might be inclined to claim that virtual property rights exist in response to hacking. (See, e.g., the Habbo furni theft.)

Yes, re to this point, i recalled a korean prosecutor once presented same argument in 2006.

He pointed that the victim of hacking should be not (only) the players but (aslo) the platform owners.

Korean information security law applying to in-game currency or item hacking stated that,

Article 49: Anybody should not damage the other's information which is used, stored or transmitted in digital networks.

The prosecutor argued at that time, why not the gaming companies falls on "the other's"

Though, until now, i could not noticed a criminal case on hacking where the victim is referred to gaming company as his argument.

ps. the law protects 'the other's information' which is not identical to 'the other's property'.

Posted Apr 17, 2008 5:37:46 PM | link

Unggi Yoon says:

i guess a weak point of the prosecutor's argument might be the application the word of 'damage' in the statute.

At player's postion, he/she lost the possession of the hacked items 'in' his/her inventory, while at company's postion, the items are still 'in' its DB server.

Posted Apr 17, 2008 6:03:45 PM | link

greglas says:

Unggi -- yes, I think that is problematic, isn't it? If self-help is actually superior to law in terms of a remedy, you would think that the law would recognize that and require self-help.

Thank you for these comments. I feel very privileged to hear from a jurist that has actually confronted the things I'm simply wondering about!

Posted Apr 17, 2008 6:08:29 PM | link

Mia says:

Very interesting- it seems like the term or prefix 'cyber' is losing influence, or relevance, in many areas. I'm thinking of things like cybertheory, cyberspace, cyberbodies-- you just don't hear those much anymore, so this is an interesting tie in. Virtual seems to be ascendant (virtual worlds, virtual property, virtual ... ) with the exception of "virtual reality." Or do you think law is clinging to cyber- and you are trying to pry it loose?

Posted Apr 17, 2008 8:59:42 PM | link

greglas says:

Hey Mia --

I've really got no linguistic agenda, other than the substantive one of trying to locate the property right with the person having the greatest investment and reliance interest, rather than just strengthening the rights associated of physical property ownership in a networked environments. The exact terms are not so important to me -- I'm just going with the existing terminology.

But generally, I think "cyber" is a bit past its prime. In law, you see it living on with course listing in "cyberlaw" (which I've taught) and the doctrine of cyberproperty/cybertrespass. I actually think "virtual" is getting kind of old too, but "virtual" is kind of the lead adjective for virtual worlds. When you're trying to talk about new property rights that would exist in virtual worlds, "virtual" seems like the term that should be used.

Hmm... Is there a new online buzz prefix that might be used for some new unanticipated form of property interest? iProperty? eProperty? wiiProperty? :-)

Posted Apr 18, 2008 10:35:36 AM | link

Andy Havens says:

greglas: "Hmm... Is there a new online buzz prefix that might be used for some new unanticipated form of property interest?"

How about "Property 2.0," "Semantic Property" or "Social Property?" ;p

Posted Apr 18, 2008 1:08:42 PM | link

greglas says:

Yeah, but property law isn't keen on radical paradigm shifts, so "2.0" doesn't fit. And I think property has always been both "semantic" and "social."

But yes, those are certainly buzzwords!

Posted Apr 21, 2008 8:45:59 PM | link

Unggi Yoon says:

Greg:

>> Thank you for these comments..

I'm just a lucky crafter who admire at your creating.

>>And I think property has always been both "semantic" and "social."

And property has always been "virtual/artificial" also.

Posted Apr 22, 2008 7:09:30 AM | link

Keith P. says:

Unggi Yoon says:

">>And I think property has always been both "semantic" and "social."

And property has always been "virtual/artificial" also"

I could not agree more with this statement. Property has always been a concept, a nexus of rights that converge over a physical item.

The problem I have with "virtual property" having parrallel rights with actual property is virtual property's completely dependant nature on some outside actors to keep the property relevent to the user. Virtual property rights seem to split from responsiblity for access and upkeep of that property.

I can understand giving someone Intellectual property rights in the expression of an idea through a computer-program-medium, but should we give actual property rights to someone for a virtual item that takes some else's labor (through providing internet access, server upkeep, power) to maintain?

A virtual item in a program exists as the sum of many peoples labor, and not just in the initial production, but in that items continued existence.

When I buy a ball from the store, lots of people have supported the creation of that ball, but once I pay for it, I've accounted for that. Contrast this with a virtual ball, where its continued existence is dependent on factors outside of my cost or control. If i fail to pay my internet bill, do I have an action for conversion of VP because I cant get to my virtual ball? this seems silly.

While the concept of property has always been virtual, the reality of the property itself is that after it is produced, it "exists" independently of any person's efforts. Virtual property does not have this trait, so virtual property should not have the same rights attached to it as real, independently existent property.

Posted Apr 24, 2008 8:22:23 AM | link

greglas says:

Kevin --

The problem with your analogy is that you have many types of rights in property that are premised on rights owned by someone else. Google for "easements" for example. The example of the ball is the prototypical chattel property interest, but property is often much more complicated than that.

Take, for instance, the dollars you place in a bank. The bank might record your deposit in an electronic system that it maintains and funds. The fact that it owns the physical property of the bank and the electronic chattel of the accounting system does not mean that it is ridiculous for you to claim that you own the funds you deposited.

Of course, the fact that you deposited your funds in the bank means that you might not be able to access those funds 24/7 and that in order to withdraw you have to show ID, etc. Likewise, if you own an easement over someone's land, you don't own their land and you can't exceed the scope of the easement in your use.

Virtual property interests will need to be similarly balanced between rights of physical property owners and virtual property owners. The right to claim a legal interest in virtual property, when recognized, will not look at all like the right you have over a ball you buy at the store.

Posted Apr 29, 2008 3:48:26 PM | link

Unggi Yoon says:

I'm indebt to you, Greg. Thanks!

What I mean in 'property is virtual', I used the word 'virtual' as antonym of 'natural as it is' or 'unchangible by human', not as antonym of 'physical' or 'real'.

In other words, I used the word 'virtual' similiar to the meaning of 'historical'.

To own food, to own my womb, to own shot-gun, to own house, to own land, to own patent, to own company, to own money, to own my avatar...

The meaning of these ownerships are not identical in the past and the present, in the east and west, and probably in off-line and on-line.

Posted Apr 30, 2008 2:46:43 AM | link