The Trespass Trouble and the Metaphor Muddle
29 Pages Posted: 19 Apr 2004
This article argues that a claim often advanced in the debate over Internet regulation is unsound. The claim asserts that metaphors such as space or place or property cause judges to think of the Internet as similar to physical property, in which persons may stake private claims the law protects from encroachment. Thinking of the Internet this way confuses or constrains judicial reasoning. I call this the metaphor claim.
The article uses cases involving the trespass to chattels tort to test the claim. It argues that such cases show judges do understand that the key to the cases is intangible information rather than that the information is stored on or conveyed through physical property. Judges have not been confused or constrained. Instead, they have engaged in more comprehensive cost-benefit analysis than critics of the trespass tort, or those who advance the metaphor claim.
The article also argues that the metaphor claim serves to trivialize judicial reasoning without refuting it (though this is not the intention of those who advance the claim), and to divert attention from severe weaknesses in academic criticism of the trespass tort. The article concludes that it is in fact trespass critics and metaphor claimants who insist on the thing-ness of property, and judges who have gone beyond that conception to adopt a more comprehensively utilitarian analysis.
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By Orin S. Kerr