Open Access News

News from the open access movement

Monday, July 14, 2003

As the New York Times reported yesterday, the California Supreme Court recently handed down its opinion in Intel v. Hamidi. Earlier coverage can be found here and here. I was one of the attorneys representing Ken Hamidi in the case and Peter asked me to write a brief post explaining how it relates to the Open Access issues that are the subject of this blog. I should note that Ken was also supported by a large number of prominent amicus parties, including a group of prominent Internet law professors, the ACLU, the Thomas Jefferson Center for the Protection of Free Expression, the AFL-CIO, the Stanford Center for Internet and Society, and the Electronic Frontier Foundation.

The primary question in the case was whether electronic contact on the Internet could be prohibited under the laws of trespass, if the electronic contact in question caused no damage or impairment to the computer system contacted. The California Supreme Court reversed the lower court decision and sided with Hamidi, finding that in the absence of damage, mere electronic contact did not give rise to a lawsuit for trespass. One of the primary arguments of Hamidi and his supporters was that a contrary ruling would have had profound adverse effects for the future of the free flow of information on the Internet. On the Internet, most people generally assume that one need not ask for or receive advance permission to click on a hyperlink or send an email to someone. This kind of freedom to link, visit, and communicate with others, of course, plays a foundational role in the development of Internet-based open access content libraries and systems.

There is a lot more to the case and the Supreme Court's 78-page opinion than can be summarized in a brief blog entry. If anyone is interested in further reading on the topic and the history of cybertrespass generally, I highly recommend this piece by Dan Burk, which deals in detail with the doctrinal aspects of the trespass issue, and this article by my friend Dan Hunter, which deals with the difficulty of meshing our cognitive constructs of "cyberspace" with legal regimes founded on real space architectures. Both articles address the Hamidi case in detail, and were cited by the Supreme Court.