Property Law in Cyberspace
About a month ago, I posted about a meeting of the American Bar Association’s Cyberspace Law Committee, where a fellow named Henry Judy, who currently co-chairs that committee’s Internet Law Subcommittee, made some interesting remarks to the effect that cyberspace — a concept encompassing more or less everything that happens on the Internet — “was better explained through a property law analysis than the long-standing presumption that there is such a thing as a ‘virtual’ world.” While this may rub some virtual world residents the wrong way, it seemed to me that there was real weight behind it; Judy comes to many of the same conclusions as portions of the geek community (on things like open-source software and privacy, for instance), but gets their through the lens of established law, rather than having to invent new methods. In any case, why should the virtual world be any different from the real one? The virtual world is part of the real world, after all.
Judy explains it better, and has sent along a draft paper of his ideas, which I’m more than pleased to present after the jump. Many thanks to him for getting in touch.
Cyberspace as Property (rough draft)
by Henry Judy, April 5, 2006
As has been indicated, I was asked to present a set of ideas that abstract or generalize from the developments in cyberspace law over the past decade for the purposes of (1) identifying developments that may occur in the future and (2) helping to explain developments in the past that we may have missed. In other words, viewing cyberspace law from a very general perspective, what are we now able to see that has strong explanatory power, both in the past and for the future?
I would like to suggest that it would be very helpful to view cyberspace law through the lens of fundamental property concepts. I think that a lot of us (very much including me) came to the area of cyberspace law thinking of cyberspace as though it were some kind of abstract, immaterial, ethereal type of thing and not fundamentally a metaphor. This perspective was almost Platonic, that is, there is this abstract, immaterial world that is in some manner good or superior, and then there is the grubby material world of things – paper, ink and all of the pre-electronic and pre-digital – that is in some manner inferior.
Closely associated with this idea was the idea that the abstract, immaterial and ethereal world of cyberspace was somehow free, or a public good, or a commons, and that it was somehow wrong to treat it as subject to dominion or separate ownership. Not only did we think of our cyberspace and e-commerce world in a very abstract way (we called it “virtual”), we also thought of it as the common law considered the deer of the forest to be - a “res nullius,” a thing of no one.
As I have thought about these Manichean and Rousseauian notions, I was reminded of Sir Edward Cooke, who was Attorney General under Elizabeth I and Lord Chief Justice of the Court of King’s Bench under James I. He once said that all the law may be summed up in three words “Meum et Tuum – Mine and Thine.” That is, he asserted that at its very core the law is all about property interests.
I would like to suggest that a large number of developments over the past decade have played out to teach us that we cannot escape from Lord Cooke’s dictum. I think there are two fundamental reasons for this. First, I think the fundamental impulses of ownership and dominion will constantly reassert themselves. There will be the constant impulse to treat the deer of the forest as having crossed into our domain and, since that has now happened, it has become ours and we will defend it against all poachers.
Second, in fact that which has been considered abstract and virtual is generally not. When we worked on the Jurisdiction Project, one of the things we had to focus on was the fact that cyberspace really was a metaphor and that the servers were real, the bytes were real (they were located somewhere in physical memory), all of the network pipes were physical things, the messages were sent by actual people to actual people and produced and were intended to produce physical consequences in physical locations.
Let’s illustrate how these abstractions play out:
1.In the absence of thinking of the world in these terms, all of the debates that are so well described in Lawrence Lessig’s works about the commons and the tragedy of the commons make no sense unless we think of cyberspace in terms of the tensions among ownership interests.
2.The whole notion of the creative commons and new forms of copyright and open source make no sense unless we think of cyberspace in these property law terms.
3.I would submit that the current debates over Internet governance and the shift from US-centric governance to UN-centric governance is a shift to effectively a new form of ownership. The power to control a thing is effectively ownership of the thing and these Internet-governance debates would reallocate the power to control the infrastructure of Internet.
4.Similarly, the Chinese, Arabian and Iranian firewalls are a form of fencing off property and asserting their dominion over it.
5.The whole Net neutrality debate is essentially an argument over property – how much dominion will the providers be allowed to have over “their pipes.”
6.I would also like to suggest that viewing cyberspace in these property terms allows us to conceptualize a number of issues in terms of trespass. This is important because it allows us to see some issues that have been principally viewed in terms of “privacy” to be viewed in terms of trespass and invasion of property interests. Electronic eavesdropping has generally been presented as a form of invasion of privacy. However, if you simply think about the word “eavesdropping”, you will recall that is fundamentally a property concept. That is, the eavesdropper stood under the “eaves drip” and listened through the wall to what was going on inside the humble house. At common law eavesdropping was treated as a form of trespass between the owner of the house and the eavesdropper and was regarded as a public nuisance as a matter of civil law.
7.The Hamidi case, I think, was prescient in this regard in that it asserted that the invasion of the employer’s computer system was a trespass to chattels.
8.In essence, spam, spyware, adware, telemarketing and junk faxes can be regarded in the same way. It is not so much an invasion of your privacy as it is an invasion of your property. Your computer system, telephone system and/or fax machine and paper stores has been trespassed upon and nobody has clearly knocked at the door and asked to be let in to abuse your time with their ads and their annoying or fraudulent pitches and to deposit their malicious code. Put another way, the purveyors of this sort of stuff, prescinding from the fraud component, treat “your” facilities as a commons, as equally “theirs.”
9.Equally, spam filters and anti-virus software (and Federal and state laws concerning spam, spyware, adware, telemarketing and junk faxes) can be thought of as fences that help block trespass to your property or state the permissible terms of public easements.
10.Encryption and steganography software is essentially a form of property protection.
11.The same is true of Digital Rights Managemenet (DRM) schemes in particular (they are basically a particular application of encryption software.) And, regardless of what you think of it, the recent French legislation to prohibit the use of Apple’s DRM software is essentially a re-allocation of property interests.
12.All the work of this Subcommittee on forms of assent in cyberspace can be thought of a dealing with the question of whether there has been truly been a knock at the door (to enter into my license property for example) and whether the knock has been favorably answered.
13.An interesting current example to illustrate the predictive power of these notions is Goodmail. It purports to guarantee that, for a fee, a party’s e-mail will be delivered to the recipient. Much objection has been taken to this proposal on that grounds that the “internet should remain free.” My perspective is that this is old thinking. To me Goodmail looks like Goodmail is agreeing with a third party that it will, for a fee, enter my inbox without my having any say in the matter. In short, a trespass. Which suggests to me that the scheme will fail unless, at a minimum my consent is obtained and, more likely, I am cut in on the action.
I would also like to suggest that viewing cyberspace to a greater extent through the lens of property interests, represents to some degree a change from viewing many aspects of cyberspace through the lens of privacy. Of course, it is the case that privacy and property and trespass are different ends of the same stick and you get the same stick no matter which end you pick up. However, it is a question of what conceptualization has the most explanatory power.
In this connection, I am reminded of a conversation I recently had with a German lawyer friend of mine who recently got an LLM from Duke. We fell to discussing the touchy subjects of pro-choice and pro-life, and in the course of it she held herself and said “Mein Bauch gehoert mir.” That is, literally, “my womb belongs to me.” She did not think of the debate in privacy terms as in Griswold v. Connecticut, Roe v. Wade and Lawrence v. Texas. Rather, from her point of view, the end of the stick that needed to be picked up was the property law end.
At the same time, there are powerful ideas and good reasons for pushing in the direction of the joint or common ownership structure of the commons. For example, what Candace Jones characterized as the “open thought” movement, meaning such initiatives as Wikipedia, the Creative Commons and Internet spaces that have inspired collaboration and joint ownership and development on a very large scale. But, even there, as Wikipedia has found to its sorrow, somebody needs to have enough special dominion to control the editing rights. You need to have a ticket to walk on the grass.
If I can summarize and bring this to a close quite rapidly, my thought would be that the history of cyberspace law has been, and will continue to be, on the very deepest level a matter of struggling to appropriately define, allocate and protect multiple new, old and different property interests.
Feeds
OK, I’m all for this, let’s convert the discussion away from the ethereal and the spiritual — a means by which too-powerful game gods hold dominion over us — and play it out in terms of property law. I’m all for that, being the possessor of a dozen sims of virtual property I lease to others in SL.
But…we’re far from done yet. If we’re going to map the Metaverse in terms of property law now instead of Zen Buddhism, great, but then…which political philosophy are we going to accept for which definition of property?
Issues of property, especially “private property” and “capitalism” are hardly decided in the world, especially at the UN, such as to turn this enterprise over to the UN. We have only to look at the current budget crisis and political impasse over the U.S. unwillingness to keep paying for the Group of 77’s bloated international civil servant corps and slush pots at the UN, under the name of “development” — and the developing world’s challenge to wealthy nations to remove their attempts to legislate morality over their obligation to help develop. This standoff is the standoff between capitalism and socialism and its variants, one that you haven’t resolved merely by celebrating Lawrence Lessig, who, when you get down to it, is for taking stuff away from old dead white guys and giving it to young live brown kids — a transfer of wealth rooted more in notions of socialism and egalitarianism than in notions of capitalism and prosperity.
You mentioned China. But wait a minute. Why does China, Inc. get to get its paws on *my* virtual world I paid for? Let’s say I live in China and have paid the equivalent of thousands of U.S. dollars to maintain my virtual properties on servers located in California. Why does the Chinese government get to take my property away and put me behind the firewall just because it doesn’t like my content, including, possibly, content critical of China and supportive of Tibet? Why? Or take Russia with the government’s SORM legislation and powers to go in the back doors of ISPs. Why does a post-Soviet or communistic or socialistic notion of “state property” get to prevail over a Western notion of “private property”?
Or take the example of abortion, converted to a “property” discussion. Depending on their religious beliefs or local law, some people would argue that a growing fetus has its own property rights. Why would one person’s property rights get to trump another’s just because they were dependent upon them for growth? Depending on whether you view the fetus as possessing life or a soul, you might take a very different attitude toward playing this debate out in terms of “property” — there is a clash of “property values” here.
The underlying political or religious philosophies and cultures and their attitude towards property, its possession, and its resale are going to create clashes — as well they should. I’m not for handing over the international concept of “property rights” over to China, Saudia Arabia, and Russia, let alone Nigeria or Brazil. That’s what you do when you “give it to the UN” — you merely fuel the East-West and North-South conflicts. And the people of Saudi Arabia, China, Russia, Nigeria, etc. won’t get to take part in these discussions with the kinds of notions *they’d* like to see about property — including their own, which may have been confiscated by these states ‘in the name of the people’!!!
Property rights discussions without a frank admission of the underlying political philosophy are doomed lead if not to sterility if not tyranny. A liberal notion of private property in the Western sense is going to run smack up against the notions of the collective and the state antagonist to such “property values”. I’m not for conceding endless “property rights” to entities that in fact have been busy confiscating people’s property for decades, often by murdering them in mass numbers.
If anything, the tragedy of the commons doesn’t come from “property rights” per se (which some imply) but the extention of “my property rights” uber alles, such that anyone can grab anything, and the most powerful wins. A balance of property rights in a community is what prevents the tragedy of the commons, and game devs and the metaverse-makers shouldn’t shirk from these difficult problems and responsibilities.