ABSTRACT
It has often been said that the internet lacks public property. Unlike the offline world, denizens of cyberspace cannot gather in the digital equivalent of public parks, cannot shame websites by picketing on adjacent cyber-sidewalks, and cannot loiter in online streets and alleys if they lack a cyber-place of their own. Yet scant attention has been paid to an even more consequential fact. Not only does cyberspace lack public property, but it also lacks private property.
In the early 2000s, scholars debated whether entities should possess property rights in their websites, email services, and other cyber-resources and thereby enjoy the right to exclude others from otherwise open areas of the internet. That debate was effectively settled when courts found that cyber-resources indeed constituted property – cyberproperty – and that holders therefore enjoyed certain property-based rights to exclude others from those resources.
Yet since that time, a key feature of property has remained elusive. Although providers and users alike can often possess, develop, monetize, transfer, sell, and even exclude others from their cyberproperty, they cannot own it. The perfectly service-oriented nature of the internet creates an environment in which licenses, leaseholds, and other possessory property interests may be had, but title is not among them. An internet devoid of ownership is, by definition, an internet devoid of private property.
In times past, when the internet functioned merely as a tool or supplement to our daily lives, the lack of title-held cyberproperty was no more concerning than the absence of ownership rights in telephone or satellite services. But as more and more aspects of society move online, the inevitable consequence is that society itself will become increasingly unpropertied. History shows that many troubling phenomena may emerge when private property rights are weak or non-existent, from tragedies of the commons to the absence of privacy to deep, structural inequality.
Drawing on lessons from pre-internet practices such as feudalism, coverture, and Communism, this Article explores the degree to which problems that have presented themselves in unpropertied or under-propertied societies are likely to re-present themselves in a modern society that lives online. It also argues that for all the scholarly concern about an internet in which property rights are too strong, insufficient attention has been paid to the dangers that can arise when property rights are too weak. Finally, it offers a handful of proposals to introduce or at least approximate ownership in cyberspace, with options spanning regulation, private ordering, and technological solutions.
Nugent, Nicholas, The Unpropertied Internet (December 16, 2024), Cornell Law Review, volume 110, 2025.
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