Property Rights and Competition on the Internet: In Search of an Appropriate Analogy

Reasoning by analogy is a time-honored method of legal development. However, recent litigation exposes the weakness of applying legal principles developed in the bricks and mortar world by analogy to cyberspace. Using recent court decisions that discuss who may access a website and by what means, this Article illustrates how results can change depending on the analogy the court adopts. The Article argues that rather than searching for analogies, courts and legislators could more profitably devote their energies to understanding how the Internet differs from physical space, evaluating whether those differences call for new legal rules, and considering the conflicting policy interests implicated. Real property rules may have unintended anticompetitive consequences if transplanted to cyberspace. Indeed, a systematic evaluation of the policy interests implicated supports more flexible property rules governing access to and use of websites than those rules governing access to traditional real or personal property