Decoding Cyberproperty

Abstract

This article examines recent developments in both the doctrine and theory of legal cyberproperty rights. The first part of this article looks primarily at two seminal cases that might be considered bookends to the story of cyberproperty: Thrifty-Tel, Inc. v. Bezenek and Intel v. Hamidi. The Thrifty-Tel case is known as the starting point of cyberproperty. The Hamidi case is sometimes seen as concluding the story of cyberproperty, but in fact, it leaves cyberproperty doctrine largely an open issue.

The second part of this article, anticipating future struggles over the scope of cyberproperty rights, challenges two assumptions that act as theoretical and rhetorical engines driving arguments for cyberproperty. The first is the assumption that legal prohibitions against interactions with privately owned computing machinery are analogous, from a standpoint of law and policy, to traditional rights of exclusion from the use of or entry into personal or real property. The second is the assumption that the practical control of code can be understood as analogous to the social instrument of law.

Both of these assumptions may be initially appealing, but they are largely misguided, as the article explains. The digital information present within computer networks is analogous to neither private property nor law. As cyberproperty law and statutes are being crafted, we must struggle to craft its theory so that we invite broader discussions of the claimed harms and benefits that attend the creation or the failure to create cyberproperty rights.

Keywords: cyberlaw, intellectual property, cyberproperty, cybertrespass, Hamidi, computer, trespass to chattels, trespass

JEL Classification: O3, O34, K1, K12