In the Mood to Exclude: Revitalizing Trespass to Chattels in the Era of GenAI Scraping

Abstract

GenAI companies are strip-mining the web. Their scraping bots harvest content at an unprecedented scale, circumventing technical barriers to fuel billion-dollar models while creators typically receive nothing. Courts have enabled this exploitation by misunderstanding what property rights protect online. The prevailing view treats websites as mere repositories of intellectual property and dismisses trespass claims absent server damage. That framework grants AI companies presumptive access while ignoring the economic devastation they inflict. But the content is severable from the website itself. The key contribution of this paper is to reframe the debate: websites are personal property subject to the same exclusionary rights as physical chattels. When scrapers bypass access controls and divert traffic that sustains a website’s value, they commit actionable trespass. The law need not create new protections; it need only apply existing property principles to digital space.

Courts and litigants have struggled to police unwanted, large-scale scraping because copyright preemption often narrows available claims, leaving copyright and its fair use defense as the primary battleground. Trespass to chattels offers a superior path, grounded in the right to exclude unwanted intrusions. Reviving this tort would protect not only content creators but also the digital ecosystem. Such protection would discourage exploitative scraping, preserve incentives for content creation, help protect privacy and personal data, and safeguard autonomy and expression. Reaffirming website owners' right to exclude is essential to maintaining a fair and sustainable online environment.

Keywords: trespass, tort, property, scraping, AI, generative AI, GenAI, crawl, index