Property Rules, Liability Rules, and Immunity: An Application to Cyberspace

Networks, the Internet, and Cloud Computing and Internet

Article Snapshot


Keith Hylton


Boston University Law Review, Vol. 87 No. 1, 2007


This paper considers our duties and rights in cyberspace.

Policy Relevance

Offline in the world of physical assets, people have property rights and duties not to endanger others known as "torts". Some of these rules can be helpful in solving problems online.

Main Points

  • When people can easily negotiate up front, property rights work well. One can ask a neighbor if you can cut across his lawn. So property rights apply, and if you don’t ask you are trespassing.
    • Hackers who break codes to get private data are also trespassers.


  • One can’t easily negotiate with every car in traffic, so tort rules, not property, apply to car accidents.
    • Driving is beneficial generally, so only careless drivers are liable (negligence).
    • Like driving, sending out email is usually okay. A tort rule like “nuisance” makes sense for someone who sends out spam.


  • Some things, like blasting with dynamite, can easily do more harm than good, so even careful blasters are liable (strict liability).


  • Should Internet Service Providers or operating system providers be liable for the acts of copyright pirates and virus writers, like someone who lets a drunk drive his car? Not if the provider is careful, because his service does far more good than harm.


  • Internet Service Providers are so beneficial, immunity from lawsuits could make sense, though the Communications Decency Act goes too far.

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