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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.

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 proof of actual damage in order to state a claim. So you can sue someone for denting your car, but you can’t sue someone for 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 “cyberproperty” 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. As Dan Burk once said in his early and influential attack on the doctrine, the modified TTC doctrine would seem to permit a person to sue a television broadcaster for sending unwelcome advertisements to a home tv set. Yet cyberproperty 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 & Sherwood 48 Assoc. v. Sony Corp., 76 Fed. Appx. 389 (2d Cir. 2003)), 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 this article is 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.

We’re hoping some judges and clerks adjudicating these claims might actually take a look at this before they decide their next cyberproperty case. Hence the brevity and hence this plug.

Here’s the link again.

p.s. Since Mike is the proprietor of this blog, let me also put in a plug for his excellent article on TTC and related issues — Rights of Access and the Shape of the Internet.