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'Communication', especially in the field of internet systems, does not require two sentient endpoints. (My computers are constantly communicating with other com

by 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.
- gojomo 11y ago
  But of the point of your language has been to lock in bad analogies. There's some begging-the-question in your argument: "We should recognize this behavior as wrong, because it's analogous to traditional trespass." Well, there are crucial ways where it's different. "Because we've already decided trespass is the model we're applying, those aspects are irrelevant, and must be resolved to work the same as in traditional trespass." No. Online, there's no physical presence, movement, or consumption. All value requires probing communication. A "blanket right to exclude" has no clear meaning until reinterpreted for the new realities. The word 'cyberspace' itself is poetic, not literal, and using 'space'/'place' as drumbeat metaphors, without adjustments, will mislead us, and will not result in the fair, efficient results we want from law. Sending a server a communicative message, especially a message the operator has invited and enabled via technical measures, is nothing like 'occupying his property' (at least not until it rises to some destructive/consumptive level). The operator's technical ability to 'exclude' – but really, ignore – is nearly absolute, far beyond an owner's powers in the physical world. So the standards of notice/care/implied-license, before alleging a criminal communication and involving the courts and state in an enforcement action, should be much higher. And maybe, when an operator is broadcasting informational goods to all anonymous correspondents ("the public"), the respective rights should be understood differently, totally outside a 'property' frame. Maybe correspondents should always retain the right to elect to "be anonymous" and thus enjoy whatever conversation is freely given to the anonymous. Maybe arbitrary conditions on communication, expressed by an 'owner' and asserting limits not just on communication with his server, but other people and servers at other times as well, should not be legally-enforceable by alleging 'criminal trespass' against individual correspondents. (Maybe the owner should have to offer consideration, and earn contractual assent, before asserting such control over others' communications.)

by gojomo 11y ago

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.

gojomo 11y ago
But of the point of your language has been to lock in bad analogies. There's some begging-the-question in your argument: "We should recognize this behavior as wrong, because it's analogous to traditional trespass." Well, there are crucial ways where it's different. "Because we've already decided trespass is the model we're applying, those aspects are irrelevant, and must be resolved to work the same as in traditional trespass." No. Online, there's no physical presence, movement, or consumption. All value requires probing communication. A "blanket right to exclude" has no clear meaning until reinterpreted for the new realities. The word 'cyberspace' itself is poetic, not literal, and using 'space'/'place' as drumbeat metaphors, without adjustments, will mislead us, and will not result in the fair, efficient results we want from law. Sending a server a communicative message, especially a message the operator has invited and enabled via technical measures, is nothing like 'occupying his property' (at least not until it rises to some destructive/consumptive level). The operator's technical ability to 'exclude' – but really, ignore – is nearly absolute, far beyond an owner's powers in the physical world. So the standards of notice/care/implied-license, before alleging a criminal communication and involving the courts and state in an enforcement action, should be much higher. And maybe, when an operator is broadcasting informational goods to all anonymous correspondents ("the public"), the respective rights should be understood differently, totally outside a 'property' frame. Maybe correspondents should always retain the right to elect to "be anonymous" and thus enjoy whatever conversation is freely given to the anonymous. Maybe arbitrary conditions on communication, expressed by an 'owner' and asserting limits not just on communication with his server, but other people and servers at other times as well, should not be legally-enforceable by alleging 'criminal trespass' against individual correspondents. (Maybe the owner should have to offer consideration, and earn contractual assent, before asserting such control over others' communications.)