Cybertrespass and Trespass to Documents

In this essay, I offer only a small contribution to the ongoing cybertrespass debate that I believe allows the debate to be seen from a different perspective. In other words, I add a new story to the mix. I explore what I call trespass to documents. The cases applying trespass to documents are real-space, pre-Internet variants of a subset of the cybertrespass cases.

They demonstrate that property rights in the tangible medium on which information is inscribed have not historically been broad enough to trump the complicated balancing of interests that characterizes information law when free-speech and competition-policy concerns are implicated. They suggest that in the past the courts have not answered questions addressing control over the flow of inscribed information by examining only the cost- and benefit-internalization rationales that lie at the heart of an economic understanding of property. They illustrate that trespass-oriented theories have been dismissed when the owner of a tangible resource seeks to use a right to exclude to obtain control over how information inscribed on that resource is used by others.