Is Virtual Trespass an Apt Analogy?

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Association for Computing Machinery




Legal doctrine often evolves both more slowly than the conduct and the technology it is intended to regulate and by analogy. When parties argue that previously unheard-of behavior should generate some legal response, the relevant institution often seeks guidance from past experience. Earlier decisions addressing a specific actual context give some confidence that applying the legal rules from these prior situations to the new fact pattern will produce a sensible result. But principles developed to deal with one set of facts can only imperfectly fit another. This imperfect fit often becomes more evident over time, sometimes raising the question of whether the initial analogy itself was valid. Legal doctrine may then evolve away from its first response to a new condition toward more specific rules reflecting an increased appreciation of the points at which the original analogy does not hold. For example, U.S. courts that first addressed claims of software copyright infringement in the 1970s and 1980s and the U.S. Congress, when it decided to include computer programs within the category of "literary works" under the Copyright Act, analogized writing computer programs to writing novels. However, over time, courts began to have difficulty using this analogy to apply rules developed with books and manuscripts in mind to software.

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