Law Commons^™

Property Rights And Competition On The Internet: In Search Of An Appropriate Analogy, Maureen A. O'Rourke

Faculty Scholarship

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 …