Transcript in a way that impairs its value

Whom Must I Let In?
Richard Warner
Where the Question Arises
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Past and present:
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Spam e-mail cases, eBay, Intel, employer monitoring of email, scanning for software license violations, EULA
provisions (permitting entry).
Future:
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Transportation (governmental; entirely?)
The “Internet connected” house
Political web sites (selective exclusion).
Consumer access to online databases
Other cases?
My Conclusions
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The law will not provide a solution.
The law actually requires a solution to these
problems via the development of relevant
shared norms.
This is one reason that it is critical that
technically knowledgeable people such as
yourselves play a role in developing the
requisite norms.
Trespass to Chattels
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Begin with trespass to chattels (= personal
property).
Trespass to chattels consists in the
unauthorized intentional use of a chattel in a
way that impairs its value.
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Note: This is a tort.
There were several Internet trespass to chattels
cases around the turn of the century.
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Pattern: (1) flood of e-mail from spammers; (2) a
competitor searches a businesses web site.
Critics of Trespass
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Mark Lemley contends that the courts failed to grasp
the real issue.
The courts saw the issue as one of personal property:
Does an Internet system owner have the right to
control access to the computer equipment?
Lemley insists that the issue was information. The
cases “were really efforts to control the flow of
information to or from a site.”
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Mark A. Lemley, Place and Cyberspace, 91 Cal. L. Rev. 521, 529
(2003).
Apocalypse Now?
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Dan Hunter warns that the “legal
propertization of cyberspace . . . is leading us
to a tragedy of the digital anti-commons.”
An anti-commons is a distribution of property
rights that imposes disastrously inefficient
restrictions on access.
The Anticommons
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He contends that “[r]ecent laws and decisions
are creating millions of splintered rights in
cyberspace . . . Historians will look back on
our time and wonder–when we have seen
what the Internet could be–how we could
have sat and watched the tragedy of the digital
anti-commons unfold.”
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Dan Hunter, Cyberspace As Place, 91 Cal. L. Rev.
439, 444 (2003).
The Consequences
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First: The growth and vitality of the Internet
depend on e-mail communication,
hyperlinking, and the search-engine index.
Second: These features thrive on impliedpermission access.
Third: Recognizing a right to prevent access
reduces implied-permission access and hence
threatens the growth and vitality of the
Internet.
E-Mail
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E-mail is the most used aspect of the Internet.
It provides inexpensive, worldwide
communication.
It offers innovative advertising possibilities.
Linking
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The Web is a network of hyperlinks.
Links do not, however, serve only to create the Web.
They also play a critical navigation role. You locate
information by following links.
The “dispersion of data that is the Internet is . . .
largely overcome by the web’s ability to link related
information in a manner transparent to the user. This
has helped make the Internet into a medium of mass
communication and a vast commercial market place.”
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Maureen A. O’Rourke, Fencing Cyberspace: Drawing Borders in a
Virtual World, 82 Minn. L. Rev., 609, 611 (1998)
Search Engines
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Search engines are “critical to the effective
use of the Internet. The Internet has multiple
sources of information at the back end
(hundreds of millions of Web pages), but only
one means of accessing that information at the
front end (the consumer’s computer screen). .
. Unless consumers have reliable means . . .
Search Engines
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to search through the immense number of passive
servers quickly, easily and independently, many
consumers will not be able to find the information
that would be most useful to them. To provide
impartial, accurate and timely information, search
engines, shop bots, and other data tools must access
and centralize information that already exists on
other web servers, but which is too distributed to be
of practical use to the consumer.”
The Internet Is Unique
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No other communications network depends
third-party access to property and information
the way the Internet does.
This challenges our conception of private
property.
In doing so, it involves us in puzzles about
privacy.
Buchanan Marine v. McCormack Sand
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The defendant moored its barges to the buoy
the plaintiff built and maintained for use by its
tugboats. (743 F. Supp. 139 (1991)).
The court found a trespass to chattels and
issued an injunction without requiring the
plaintiff of show any harm other than being
deprived of the use of its property.
It did even not matter whether the plaintiff
desired to use the buoy at the time the
defendant was using them.
Private Property
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It was the potential deprivation that mattered.
The buoy did not become available for use by
others as soon as the owner was not using it.
To hold otherwise would be inconsistent with
the fact that the buoy is private property.
An owner of private property has the right,
within broad limits, to decide that no one shall
use the property.
The Internet Variation
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Rex owns and runs Web Babes (WB), a web
site consisting of a collection of hyperlinks to
web pages with pictures of women.
WB links to resumes containing pictures of
women; to personal web sites displaying
pictures of vacations; and so on.
Rex catalogues the pictures in terms of
attractiveness on a 1 to 10 scale.
Vicki and Sally
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He collects the links using automated robot
search software which he sends to publicly
accessible web sites.
Vicki and Sally maintain a personal web site
on which each displays vacation pictures.
Rex links to the sites.
Vicki is offended and Sally wants a fee.
Trespass?
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Rex continues to search the site.
Is this a trespass?
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Trespass to chattels consists in the unauthorized
intentional use of a chattel in a way that impairs
its value.
No damage to a computer or harm to a relevant
economic interest.
The Non-Internet Variation
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Vicki and Sally live in a small town where
they are among the many who keep albums of
their vacation pictures on their front porches.
Rex visits the porches regularly and
summarizes his findings on his web site.
In this variation, trespass to land and trespass
to chattels protect Vicki’s freedom and
promote a market exchange between Rex and
Sally.
When Does Someone Trespass?
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Trespass to chattels consists in the
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unauthorized intentional use of a chattel
in a way that impairs its value.
See any repeated, unpreventable use as impairing
value.
Develop a doctrine about when use is “authorized”
(most importantly, when you can revoke permission
to enter a publicly accessible web site).
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We need widely recognized norms defining the scope of
authorization, but we do not have them.
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Recall Rex, Sally, and Vicki.
What About Contracts?
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Why not resolve these questions
contractually?
Seems plausible.
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When you go to a web site, you agree to terms of
use.
It turns out that we end up in the same place:
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Needing norms,
But not having them.
What Is A Norm?
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A behavioral regularity in group
Supported by a (legal or non-legal) sanction
Where group members think they ought to act
in accordance with the norm.
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Two cases:
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Ought to so act because it is the norm.
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Driving on the right.
Ought to so act for a norm-independent reason.
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Busy lawyer meets pregnant women in narrow hall way.
Who lets whom pass?
Standard Form Contracting
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The vast majority of contracting (well over 90%)
consists of agreeing to terms presented in standard
forms.
No one—well, almost no one—reads these contracts.
In the non-digital cases, there are fairness norms
which apply.
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E. g., “other things being equal, the best loss-avoider
should bear the risk of loss.”
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Tim is better a first base, and Sally is better at second, so Tim
plays first base, and Sally plays second.
The manufacturer is better at avoiding motor defects in
refrigerators; the buyer, better at avoiding wear and tear on the
shelves.
Sellers Comply with Fairness Norms
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Sellers maximize profit by offering contracts
consistent with fairness norms.
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Reading buyers only buy from sellers offering
such terms, and
the lost business outweighs the gain from the
more seller favorable terms.
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Because they are only relevant if things go wrong, and
Because courts will not enforce them.
This is true even in monopolistic markets.
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As long as there is sufficient competition.
Digital Cases/Web Sites
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We lack relevant norms in regard to
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Reverse engineering
Transfer of software to third parties
Access rights to hard drives
Privacy
Privacy is our concern.
Privacy Puzzle
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“Perhaps the most striking think about the right to privacy is
that nobody seems to have any very clear idea what it is
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Judith Jarvis Thompson, The Right to Privacy, in Philosophical
Dimensions of Privacy: An Anthology 272, 272 (Ferdinand David
Schoeman ed. 1984)
Privacy is
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“vague.”
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“protean.”
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Arthur R. Miller, The Assault on Privacy: Computers, Data Banks, and
Dossiers 25 (1971).
Tom Gerety, Redefining Privacy, 12 Harv. C.R.-C.L. L. Rev. 233, 234
(1977)
suffering from “an embarrassment of riches.”
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Kim Lane Scheppele, Legal Secrets 184 – 85 (1988).
Where the Question Arises

Past and present:


Spam e-mail cases, eBay, Intel, employer monitoring of email, scanning for software license violations, EULA
provisions (permitting entry).
Future:





Transportation (governmental; entirely?)
The “Internet connected” house
Political web sites (selective exclusion)
Consumer access to online databases
Other cases?