Proprietors of virtual communities sometimes make absolutist claims to sovereignty over the platform and the community. These proprietors tend to resist any public regulation, as they see the platform as 'their' 'property'. Unlike public utilities, most platforms do not receive Government funding or enjoy legislated monopolies, and therefore, the proprietors assert, they ought not be under any special duties imposed by the state. On this view, participants are granted access to the proprietor's private property on certain conditions, and are not entitled to expect any non-contractual obligations from the proprietor.
This argument builds on a simple analogy from tangible property – that, in fact, a platform for a virtual community is no different to a private parcel of land, and, therefore, the proprietor may exercise absolute discretion as to who may enter and remain on (access) the property (system). The natural right to own and control property needs little or no justification, and it follows that the State ought not interfere with the operation of a virtual community.
Carrier and Lastowka forcefully remind us that the property analogy poses an inherent risk of driving us towards absolutist conceptions of access rights, for which no such justification can be found even within property theory.1) Private property rights are indeed granted over the servers which form the platform for a virtual community, and these servers will be protected from appropriation or trespass. Similarly, a property right is granted over the software which runs the virtual community in the form of copyright, which protects and rewards the investment required to create the platform. It does not necessarily follow, however, that the proprietor is granted a property interest in the entire community, such that he or she has a “whole and despotic dominion” over it. Clearly a proprietor has some form of control in determining whether and when to provide access to the service, and, ultimately, in flicking off the switch and disconnecting the service completely.2) To call this a property right over the community, however, serves only to confuse the issue.
Property is one of the keystone concepts in our legal system. Deeply ingrained within our liberal tradition is the notion that government interference with private property rights should be severely limited. Some proponents of cyberproperty draw upon this natural argument for property rights to avoid the much more difficult tasks of justifying the entitlements they argue should be granted to platform owners and service operators. To call something private property is to make a strong normative claim that it ought not be regulated, but it tells us nothing about why we ought to allocate entitlements in this particular manner. The property label serves merely to obfuscate the underlying policy arguments for allocating certain powers to certain persons. The intellectual move is elegant in its own way – services on the 'net are 'property', and it therefore follows, that the entitlements that apply to owners of real property ought to be extended to the owners of cyberproperty. This is an expansionist move which implies a natural deterministic solution – exactly the type of argument that Bentham called “nonsense upon stilts”.
Carrier and Lastowka attempt to unravel the claims made by cyberproperty advocates by examining the traditional justifications for property. They conclude that cyberproperty is not supported by either the Lockean labour / desert theory,3) Hegelian personality theory,4) or utilitarian arguments.5) More importantly, however, they note that even if property rhetoric were appropriate for networked platforms and services, its use tends towards absolutist protection – a 'perfect' limitless 'caricature' of property.6) Inbuilt within our existing property system are numerous checks and balances, limits on the property owner's exercise of his or her rights.7) These limits provide safeguards for the interests of those who would use the property against the wishes of the proprietor. In cyberproperty, though, these limits are ignored as judges tend to grant absolute power to the proprietor, and the result is a grossly over-reaching rights regime which has pulled itself up from its own bootstraps – by calling virtual communities 'property', we effectively and without introspection grant more control over them to their proprietors than we would ever grant over physical property.
The use of property rhetoric is dangerous. If we, as a society, intend to grant certain rights to platform owners, we should do so as a result of rational reason, rather than as a response to perceived necessity.8) The deeply ingrained liberal ideals which surround conceptions of property in our society do nothing to help us determine whether it is appropriate that we impose limits on the ability of proprietors to exclude participants at will. It may provide an answer to that question, but it arrives at that answer from the circuitous and self-affirming route of false analogy.
Michael A Carrier and Greg Lastowka, "Against Cyberproperty" (2007) 22 Berkeley Technology Law Journal 1483.
Note, however, the suggestion from Balkin that even this right may be limited in certain circumstances: Jack Balkin, "Virtual Liberty: Freedom to design and freedom to play in virtual worlds" (2004) 90 Virginia Law Review 2043, 2071.