Trespass and Kyosei in Cyberspace

Trespass and Kyosei in Cyberspace

Richard A. Spinello (Boston College, USA)
DOI: 10.4018/978-1-59140-576-4.ch008
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This chapter considers the theme of trespass in cyberspace. In order to prevent unauthorized use of their data several U.S. companies have hastily filed lawsuits alleging trespass to chattels. But some of this data usage, especially for metasites, is socially valuable. Nonetheless, the courts are generally sympathetic with these trespass claims even if this means that activities like spidering or e-mail are constrained in certain contexts. Legal scholars have criticized this trend because it creates a novel property right in factual data which is not eligible for copyright protection. These legal concerns are justified, but what should moralists be saying about this matter? We argue here that both eastern and western philosophies recognize the need to respect the common good of a community or common venture. This awareness should temper a company’s narrow focus on proprietary property rights. We attempt to define the Net’s common good (or commonly shared values) and make the case that Internet users have a prima facie duty to support that common good. Thus, prudent and morally responsible companies operating on the Net will seek to balance their property entitlements with this affirmative duty to support the Internet’s common good. There is no magic formula for achieving this precarious balance, but we offer some general criteria that will orient managers toward the right direction. Finally, we explain that a private settlement of trespass matters is clearly welfare-enhancing.

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Table of Contents
John J. Neuhauser
Richard A. Spinello, Herman T. Tavani
Chapter 1
Richard A. Spinello, Herman T. Tavani
This chapter presents some foundational concepts and issues in intellectual property. We begin by defining intellectual objects, which we contrast... Sample PDF
Intellectual Property Rights: From Theory to Practical Implementation
Chapter 2
Kai Kimppa
This chapter offers a new view on how justifiable the current liberalist view on intellectual property rights (IPRs) in software actually is if... Sample PDF
Intellectual Property Rights in Software-Justifiable from a Liberalist Position? Free Software Foundation's Position in Comparison to John Locke's Concept of Property
Chapter 3
Michael J. Scanlan
This chapter considers certain features of Locke’s account in Chapter V of his Second Treatise concerning how a natural right of ownership can arise... Sample PDF
Locke and Intellectual Property Rights
Chapter 4
Thomas M. Powers
The distinction in U.S. copyright law between ideas and their expressions is of particular importance in protecting software. In literary works and... Sample PDF
Ideas, Expressions, Universals, and Particulars: Metaphysics in the Realm of Software Copyright Law
Chapter 5
Ann Bartow
A judicial determination of “likelihood of confusion” is the linchpin of successful trademark infringement actions in the United States, and is... Sample PDF
Exporting Trademark Confusion
Chapter 6
Dan Burk
This chapter examines the relationship between hypermedia and feminist discourse, critiquing the role of copyright in controlling or suppressing... Sample PDF
Feminism and Copyright in Digital Media
Chapter 7
Herman T. Tavani
This chapter critically examines current copyright protection schemes that apply to digital information. We begin with a brief examination of the... Sample PDF
Recent Copyright Protection Schemes: Implications for Sharing Digital Information
Chapter 8
Richard A. Spinello
This chapter considers the theme of trespass in cyberspace. In order to prevent unauthorized use of their data several U.S. companies have hastily... Sample PDF
Trespass and Kyosei in Cyberspace
Chapter 9
Elizabeth Buchanan, James Campbell
This chapter explores the growing threats to intellectual freedom through the loss of the information commons in the U.S. as a direct result of... Sample PDF
New Threats to Intellectual Freedom: The Loss of the Information Commons through Law and Technology in the US
Chapter 10
Melanie J. Mortensen
The debate in Canada that occurred prior to the amendment of the Copyright Act regarding the regulation of television retransmission on the Internet... Sample PDF
Would Be Pirates: Webcasters, Intellectual Property, and Ethics
About the Authors