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But this is another case where analogies to tangible property can easily mislead. Even though we metaphorically call viewing a website 'a visit', I'm not occup

• mistermann 11y ago
  Correct, and that doesn't even consider that "That ethical principle applies just as much to websites as coffee shops" analogy is flawed because in this case the product (content) is provided by the visitors, entirely different from any typical retail store for which this legislation was originally drafted. This difference definitely justifies amendments or entirely new legislation.
• rayiner 11y ago
  The web server is not sentient, so you are not "communicating" with it. It is a piece of property that you are using by sending it requests. And consumptive/rivalrous use is a red herring. Property is about exclusive use of and control of access to something. Whether a competing use is rival or not is irrelevant. Cutting across a yard or walking into a store is still trespass, even though it's only consumptive/rivalrous in a de minimis way.
  • gojomo 11y ago
    'Communication', especially in the field of internet systems, does not require two sentient endpoints. (My computers are constantly communicating with other computers while I sleep!) Consumptive/rivalrous use is relevant to the issue of what words, analogies, and legal regime should apply. You've been emphasizing terms and metaphors which make people think of situations where incremental use exacerbates scarcity. (Even your de minimis examples are activities that in the tangible world, can't be repeated endlessly without inconveniencing others.) Much of the online world is different. Applying 'trespass' metaphors implies negative-sum wear-and-tear when in fact the activity can be marginally costless... or even socially net-beneficial, when spreading information improves decisions or competition. A website operator that plugs their server into the net, and publicizes its address and services to the anonymous public, has consented to receiving a rather large set of messages from anyone. They retain full control over what that server – their 'property' – does in reaction, and what information it sends others, via software of their own choice and design. Given that reality – which is very different from that of physical and real property – an interesting question is how much use-via-communication should be considered implicitly authorized, by custom and common sense, and what it takes to selectively revoke that blanket authorization... especially authorization that's still available to the anonymous public. Permission-revocation via bright-line technical-access-controls would be a clear and fair system. People and even machines would be able to tell what's allowed, and litigation would be minimized. Revocation by fuzzy 'terms-of-use' or other out-of-band communications seems ripe for confusion and abuse. That's especially true if any commercial dispute over reuse of true information can automatically be trumped up into a more serious 'hacking' ("access exceeding authorization") federal offense.
    • rayiner 11y ago
      The point of the de minimis examples is to tease out the animating purpose of the law. If preventing rivalrous use was the animating purpose, it simply would not make sense to give a trespass right of action in situations where the trespass was de minimis. Yes those de minimis examples can become rival if repeated endlessly, but they're not, so why would we base the law on an extreme hypothetical? The animating principle of property law is that it gives a stronger right than just the right to exclude rival uses: it gives the right to exclude, period. That doesn't have to be the principle, but that's a question that's entirely orthogonal to meat space versus cyber space. There is nothing about cyberspace that obsoletes the idea that private property gives a blanket right to exclude. As for revoking license, in this case 3taps had specific knowledge that it's implied license was revoked.