Against Cyberproperty

Abstract

Ever since cyberproperty burst onto the legal scene a decade ago, courts and scholars have assumed that it is inevitable. This Article shows that it is not. Scholars have examined one element of the link between cyberproperty and property in asking whether cyberspace is the correct model for websites and e-mail servers. But remarkably, they have neglected the other property foundations of cyberproperty.

This Article shows that none of the primary theories supporting property - Locke's labor theory, Hegel's personhood rationale, and utilitarianism - justifies cyberproperty. It demonstrates that the concept lacks property's limits. And it finds that existing statutory prohibitions against spam, electronic invasion, and copyright infringement are more narrowly targeted and less likely to quash competition and speech. The Article concludes that the time has come to abandon cyberproperty.

Keywords: cyberproperty, property, cyberspace, Locke, Hegel, utilitarianism, spam, electronic invasion, copyright

JEL Classification: K11, L86, O34