Rights of Access and the Shape of the Internet

Abstract

This Article reviews recent developments in the law of access to information, that is, cases involving click-through agreements, the doctrine of trespass to chattels, the anti-circumvention provisions of the Digital Millennium Copyright Act, and civil claims under the Computer Fraud and Abuse Act. Though the objects of these different doctrines substantially overlap, the doctrines yield different presumptions regarding the respective rights of information owners and consumers. The Article reviews those presumptions in light of different metaphorical premises on which courts rely: Internet-as-place, in the trespass, DMCA, and CFAA contexts, and contract-as-assent, hi the clickthrough context. It argues that the different doctrines should be rendered consistent with one another and with an understanding of the relevant metaphor that is based on consumer and user experiences of the Internet, rather than on formal property-based constructs.