The Trouble with Trespass

Abstract

Several courts have now recognized the common law action of trespass to chattels as a viable claim to enjoin unwanted e-mail communications on networked computer systems. However, this archaic claim is a poor fit to the context of cyberspace, and courts have had to substantially revise the elements of the claim to accommodate it to computer networks. In doing so, they have created a new species of property right which is now being applied to a wide variety of automated computer interactions. The assertion of an exclusionary interest over such interactions may lead to a type of anti-commons tragedy that could threaten the integrity of the global Internet system.

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