Trespass To Chattels - Trespass To Chattels in The Electronic Age - Cautions On Expanding The Tort in The Electronic Context

Cautions On Expanding The Tort in The Electronic Context

Although a number of commentators have expressed enthusiasm over the increasing "propertization" of intellectual property (that is to say, the increased application of real property doctrines to intangible property) and the extension of the trespass to chattels doctrine to computer networks, a number of detractors have expressed concern over the ramifications of extending the theory to protect electronic communications that do not actually damage the computer systems in question but only cause nominal damage due to their content. Primarily, these critics worry that extending trespass to chattels in this fashion would stifle free speech on the internet because any unwelcome email might constitute a trespass and may subject the sender not only to civil liability under the trespass theory but to criminal liability as well. This would presumably reduce people's willingness to communicate freely on the Internet and curtail the Internet's ability to function as an open, democratic forum. Particularly in situations where the electronic communication is an email that contains speech that is of importance to the public and the communications do not hamper the functionality of the recipient's computer system, First Amendment free speech protections ought to outweigh the property right in the unharmed computer system. Similarly, critics have also expressed concerns that plaintiffs have employed the doctrine to stifle legitimate competition. For example, the screen-scraping cases indicate that courts might interpret trespass to chattels in such a way that allows major corporations to prevent price comparison sites from employing harmless bots to aggregate information that users want in a readily accessible format since it might encourage consumers to look elsewhere.

Critics of the theory's extension to computer networks also note greater theoretical problems with the applicability of a real property theory to intellectual property. In order to explain why real property theories might extend to the Internet, proponents equate "cyberspace" with real land, arguing that owners of computer servers should have the same right of inviolability as owners of land receive to promote greater efficiency in transactions. However, even if some aspects of cyberspace resemble real space, detractors contend that cyberspace is not like real land at all because "the 'placeness' of cyberspace is a matter of ongoing social construction." Furthermore, even if granting property rights might help to avoid problems of inefficiency and under-cultivation in the context of real property, critics note that nothing suggests that the same principles would also be effective in the context of computer networks—especially because the problem of under-cultivation does not tend to occur online.