Cyberproperty in the United States
The concept of "property" originated in the world of physical objects, and precedents are not well suited to "cyberproperty," especially insomuch as a violation of digital files may not result in damage or unavailability to the owner, which is the basis of much property law. In the United States, there have been legal reforms to better address this shortcoming.
Historically, civil suits over property have required plaintiffs to demonstrate some actual damage or dispossession of the property as a basis for a financial claim. The inability to make such a case has been detrimental to the protection of digital property, though some precedents exist.
For example, the tort of trespassing does not require such proof: merely crossing a boundary into a private space is an act for which the owner of that space may seek a remedy (though the amount varies). However, there is some judicial disdain that arises from the number of cases in which individuals sought financial remedy for "non-damaging contact made with cars, umbrellas, or dogs" that undermine the value of precedents in this regard.
Some references are made to the distinction in law between trespass by a physical object versus an "intangible or transitory" one (such as smoke or chemical fumes). The relevance of this to an electronic ingress is clear, but it seems picayune and inconsequential except to be said that it has been attempted as a defense.
Another example is theft of signal (cable/satellite television) or service (long-distance phone calls), in which the action did not involve harm to property, but merely use of a capacity without payment. Settlements in such matters are generally limited to the amount that the provider would normally have received in payment, plus costs of investigation and prosecution, plus punitive penalty (which varies).
After a landmark case in 1996 (Thrity-Tel), this precedent was used by ISPs against spammers (AOL v.Cyber Promotions et. al.) as well as service providers against sites that resell a service without permission (TicketMaster v. Tickets.com). The outcomes are not discussed in detail, except to state that the outcome, when the case went to its conclusion, was most often an injunction and the wording of the rulings have been too ambiguous to provide solid precedence.
Another landmark case was Hamidi v. Intel, in which a disgruntled former employee won the "right" to continue to communicate with former colleagues still employed by the organization. The case was appealed to the state supreme court before affirmation, but the judgment was clear that his actions constituted a trespass onto Intel's "property." However, this is unusual, in that the company (not the recipients) "owned" the e-mail accounts as well as the servers on which the messages resided, so it has not been successfully employed as a precedent in a boarder sense, except to affirm that property rights trump free speech rights in the digital medium (much as one cannot hijack a radio station to exercise the "right" to speak to the listeners).
Another oddball case (relevance uncertain, but it's pretty interesting) involved a real estate company suing a film company for taking digital photographs of buildings (used in a film and later a videogame). The appearance of the buildings was altered, so the film did not depict "real" buildings and paid no fees to the owners or architects, and the latter attempted to sue for the act of taking the photographs (the laser used to gauge the distance to focus the lens "touched" the buildings) . The case was lost, then reversed twice, until the parties settled out of court.
Another instance in which digital property was preserved was Sotelo v. DirectRevenue, in which the latter was sued for installing spyware on the computers of class members, though the judgment in this case was based on the "diminished functioning" of the computers as a result of the software's unauthorized presence.
In the end, the author asserts that this myriad of rulings has left digital property in uncertain state and an unpredictable future.
The author transitions from case law to legal theory, and discloses his thesis in advance: that digital property rights are "unjustified" and that the doctrine of protecting digital property should be abandoned by the legal system - and instead, to more carefully craft law to provide remedy from actual harm, as this approach should prove to decrease nuisance cases and withstand changes in technology.
Confusion about Land and Economics
Some arguments for digital property are based on the principles of physical property, namely land (precedents based on trespass), largely based on analogy between digital place and physical place. In this sense, the Internet is seen as a system of public roads connecting private plots of land.
Aside from being pure abstraction, much of the law that protects land is based on the finite property of land and the protection (or apportion) of scarce resources. However, the "space" of the Internet is neither finite nor scarce, and needs no such legal status.
There is some assertion of scarcity. The example is given of Internet domain names, but this is artificial: because the vast majority of service providers agree to subscribe to a single service, supply seems limited, but the possibility of multiple services arising is not precluded, and therefore domain names are not scarce.
There is also a sense of a need to protect uniqueness - for the law to defend a digital space as a method of preventing an impostor from assuming the identity of an organization or a person. However, this is better remedied reactively, under existing laws that address such fraud.
Confusion about Code and Law
Two prominent proponents of digital property (Wagner and Belia) approach the topic from the stance that code (a program or system in place to defend against access) is the equivalent of law - i.e., the fact that measures have been taken to protect a space constitute a claim on the space, hence engender a legal protection of that space against unauthorized entry.
The inherent problem with this approach is its imprecision and unsuitability. The analogy the author draws is to a locked door. Picking the lock is not a criminal action unless the perpetrator then goes through the door, or leaves it open for others to enter. And if there are several doors to a room, only one of which is locked, is entry through another door still to be illegal because one of the doors was locked? If the lock is present but not engaged, does that necessarily constitute permission to enter?
The analogy, like the concept, is too ambiguous and flawed to be the basis of law, and the unsuitability could well lead to the criminalization of benign actions and a legal defense against actions that should be considered criminal.
The author recaps the points of his article: that both case law and legal theory intended to protect "property" in the digital medium are vague and flawed, and it's his hope to dissuade further legislation along those lines, turning instead to more objective and reliable methods of assessing the harm done and the remedy warranted by any given action.