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Abstract:
The common law action of trespass to real property served to establish and preserve the very notion of "property" in land. Many of the words used to describe Web sites have a basis in real property: the word "site" itself is one, as are such expressions as "home" pages, "visiting" Web sites, "traveling" to a site and the like. This usage suggests that the trespass action might appropriately be applied to Web sites as well. The question is not merely academic, for the "obvious" protections-technology and copyright law-may not work. That analogies to real property trespass *can* be made does not suggest, however, that they *should* be made. The fundamental issue is whether the treatment of Web sites as property makes sense in light of the justifications for the institution of property generally. Four strands of property theory-Locke's natural rights, Bentham's utilitarianism, Hardin's "tragedy of the commons," and Radin's "property as personhood"-turn out to yield strong justifications for treating Web sites as property and hence for the application to them of the common law of trespass.
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