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In an age where information is available at the touch of a few keystrokes from anywhere around the world, legal and moral questions concerning the ownership of this information abound. This paper addresses these questions, analyzing the notion of property, how information legally becomes property, and important Supreme Court rulings on information as property.

The widespread use of computer networking has introduced many social, ethical, and political questions. Among these is the question of whether information is property, and if so, what are the rights and privileges of the owner. For example, if information is property, can it be stolen? If so, how? Legal battles escalating to Supreme Court decisions have addressed these questions in cases such as Riggs v. United States, and Feist Publications v. Rural Telephone Service. This paper explores the notion of property and traces how these cases have shaped its meaning.

From seventeenth-century philosopher John Locke, our forefathers framed the words "life, liberty, and the pursuit of happiness" into our Declaration of Independence. To Locke, these freedoms were the essence of property. In a natural sense, Locke explained that property was "what was one's own," [1] including one's life, liberty, and labor which cannot be rightfully taken without consent. [2] Accordingly, a person attained property by mixing their labor with it, giving it value in an economic sense.

While these notions might seem archaic in our modern age, they are the underlying foundation of our government, legal system, and society in general. Evidence of Locke's influence extends past the Declaration of Independence and into our daily routine of working from nine to five, so that through our labor we will have the freedom to obtain property.

While Locke would argue that thoughts and ideas are the property of their creator through labor, our legal tradition supports the views of Thomas Jefferson, himself a prolific inventor and force behind our nation's first intellectual property laws. He supports Locke's view that an individual is the exclusive owner of their ideas, but goes further to say that when these ideas are shared with another, the original owner no longer has exclusive rights. His words greatly influenced our nations first views toward intellectual property:

We see this philosophy in spirit of the World Wide Web and the Internet, a medium capable of spreading information across the globe as Jefferson advocated. In addition, these thoughts pervade copyright law, giving limited property rights to writers in the expression of their ideas, but regards the copyrighted information and ideas to be freely usable by all. Furthermore, they influence patent law, making public the information on how to make and use an invention, even the best way known to the inventor.

Taken to the extreme, our society could not operate on the premise that an individual solely owned their ideas, controlling their dissemination, application, and implications. To do so would require more control and wisdom than is mortally possible and greatly impede technological progress. Likewise, we could not function on the other extreme with everyone collectively owning an idea. Not only would this destroy any economic incentive for creativity, but the conflicts arising from varying opinions on its control would be practically infinite in number and unresolvable. The solution is then somewhere in the middle, a balance between individual property rights and social control. The courts determine this balance, case by case, as they try to answer the next question.

If information is property, can it be stolen? And if so how? These questions lie at the heart of intellectual property right debates. Traditionally, criminal law supports that someone cannot be prosecuted for theft of information alone, unless something tangible (such as a document or disk) embodying the information is additionally misappropriated.

The reason for this rule is simple yet profound. When a person takes something tangible such as a disk, they deprive the owner of its possession and the use of the disk. When someone instead takes just a copy of the information on the disk, they leave the owner with just as much possession and use as they had before. The Supreme Court has upheld this Jeffersonian attitude by deciding that the transportation of pirated tapes across state boundaries did not violate any interstate transportation of stolen goods statutes because although pirating the tapes violated copyright law, the tapes themselves did not classify as "stolen property." [4]

Because the Supreme Court has established that the medium containing the copied information is not stolen property, the law must classify the information itself as property before it can be stolen. Only a few ways exist to legally designate information as property. Of these, copyright law and patent law, are entirely federal statues brought about by the Constitution's grant of legislative authority. [5] Other methods for classifying information as property exist at he state level, such as trade-secret law. [6] I will explore each of these laws in the context of the following Supreme Court rulings.

When companies internally document their products or services, they usually place a large warning in the margins proclaiming "Proprietary Document." But what does this disclaimer mean? Businesses would like to feel secure in believing that their competitors can not use this information against them, and that it will remain private for their use only. The U.S. Supreme Court, however, in its decision of U.S. v. Riggs shattered this security by ruling that labeling a document proprietary does not necessarily make it legal property.

Robert Riggs, a "hacker" in his early twenties, discovered out of curiosity that he could gain access to one of BellSouth's computers. The computer was very insecure, not even requiring a password. On this computer, Riggs found a word-processing document containing procedures and definitions relating to the Emergency 911 system (E911 system). Riggs knew that his friend Craig Neidorf, a Missouri college student, who, while not being a hacker himself, would be interested in this information for his small electronic newsletter Phrack. Neidorf stripped the "NOT TO BE DISCLOSED OUTSIDE OF BELLSOUTH OR ITS SUBSIDIARIES" warning from the document and published it in the February 24, 1989, issue of Phrack. Shortly afterwards, Secret Service agents arrested Riggs and Neidorf and seized all the systems that might contain the E911 document in accordance with evidentiary search warrants. [4,6]

Both men were charged with counts of wire fraud (18 U.S.C. 1343), interstate transportation of stolen property (18 U.S.C. 2314), and computer fraud (18 U.S.C. 1030). Only the last charge specifically confronted the unauthorized computer intrusion, while the first two were "general purpose" criminal statutes used in a wide range of criminal prosecutions. (The interstate transportation of stolen property (ITSP) statue requires that the "goods, wares, merchandise, securities, or money, [to be] of the value of $5,000 or more," while the wire fraud statute involves the fraudulent taking of "money or property.")

Riggs could not deny his unauthorized access to BellSouth's computers, and later pled guilty to the computer fraud charge. Neidorf, on the other hand, pled innocent to all three counts, citing First Amendment privileges for publishing the information and claiming that he did not deprive BellSouth of property as required by the ITSP and wire fraud statues.

The case was eventually appealed to the Supreme Court which ruled in favor of Riggs and Neidorf. The reason the government lost was that they mistakenly assumed that the E911 information was BellSouth's "property."

To become property, information must pass several legal tests. The E911 document, a list of definitions and procedures, certainly did not constitute an invention or other patentable method or process. Furthermore, the Court ruled in Dowling v. United States, 473 U.S. 207 (1985) that copyrighted materials fall outside the scope of ITSP statutes. In Dowling, the Court decided that there must be "a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods." Unauthorized copies, therefore, of copyrighted material do not meet this "physical identity" requirement. [6]

While patent and copyright law are the creations of the federal government, trade-secret law is the domain of the state. Although no federal definition of trade secret exists, prosecutors have used the concept in Supreme Court cases to establish that information is property. One good definition of "trade secret" as decided by the Supreme Court in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974) is "a trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives one an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers." The company itself is primarily responsible for keeping this information a secret by labeling documents as "proprietary," making employees sign nondisclosure agreements, or destroying discarded documents of the information.

The E911 document did not qualify as a trade secret for two reasons. First, recall that BellSouth, a Regional Bell Operating Company, is a monopoly-telephone service provider for a specific geographic region; therefore, BellSouth had no competitors that could use the information to gain an advantage as specified in the Kewanee decision. Second, anyone could buy the information contained in the E911 document from any regional Bell or Bellcore, the Bells' research arm, for $13.00. Hence, the E911 document was certainly not a "secret," even though proprietary. [6]

Given that the E911 document did not qualify as property under patent or trade-secret laws and that copyrighted materials did not apply to ITSP statues, prosecutors had little recourse other than to drop the charges against Neidorf and Riggs. This case illustrates the difficulty in classifying information as "property" and deciding how it is "stolen."

According to Locke, individuals may acquire previously unowned property or create property through the mechanism of labor. This premise is fundamentally ingrained into our society. In fact, the phrase "working for a living" or "what do you do for a living?" means just that, using labor to gain freedom (i.e. property) to enjoy life.

The Supreme Court, however, in Feist Publications v. Rural Telephone Service, ruled that labor alone was not sufficient to classify information as property. Specifically, it interpreted that copyright law requires that the information contain "original expression."

The Rural Telephone Service is a public utility providing telephone service to several communities in the northwest region of Kansas. It publishes an annual directory, listing the names, addresses, and telephone numbers of their customers. While Rural distributes the directories at no charge to its subscribers, it makes profits from the advertisements in the yellow pages.

Feist Publications, begun by a high school history teacher named Feist, thought that residents would benefit by publishing an area-wide directory of the 11 telephone services in this part of Kansas. Feist went to the 11 companies requesting license to use their white page listings in his directory. All but Rural Telephone Service agreed.

Faced with either having an incomplete directory or copying Rural's listings without permission, Feist chose the latter. Consequently, Rural sued Feist for copyright infringement, and won in trial court. Like many cases before it, the judge supported the "sweat-of-the-brow" theory of originality and ruled that copyright law protected white page listings. Suprisingly, the Supreme Court agreed to hear the appeal, having turned down a number of previous cases concerning copyright protection of telephone directories. Among other issues, the Court wanted to set a precedence for the previously undefined "original expression" requirement of copyright law.

The Supreme Court decided that the white page listings lacked sufficient originality for copyright protection. The Court ruled that the originality in the compilation must lie in the selection, coordination, or arrangement of the data. The Rural listings, according to the Court, were "utterly lacking in originality," and "devoid of even the slightest trace of creativity." It was, consequently, not protected by copyright law. [7]

The importance of Feist is that laborious compilations of information are not necessarily guaranteed property unless they possess some form of originality. The impacts of this ruling spread far into an age where electronic data is becoming easier to manipulate in larger quantities.

As the Riggs and Feist case illustrate, the task of establishing the elements of a theft crime is not easy when the "property" in question is information. Consequently, the legal system continues to carve out the meaning of the word property and how it applies to information. The Supreme Court has already made several rulings, concluding that fact compilations and proprietary documents are not necessarily property. In addition, the Court has ruled that the medium carrying copied information is not stolen property with respect to interstate transportation of stolen property laws. These examples just scratch the tip of the iceberg, and as the Internet increases in popularity, the debates concerning intellectual property rights will only continue to grow.

[1] J. Woelfel and S. Trulove, Patterns in Western Civilization, Simon & Schuster Custom Publishing, Needham Heights, Massachusetts, pp. 253-254, 1991.

[2] J. Locke, Second Treatise on Government, Harlan Davidson, Inc., Wheeling, Illinois, pp. 118-119, 1982.

[3] T. Jefferson, The Writings of Thomas Jefferson, vol. 6, H.A. Washington, pp. 180-181, 1854.

[4] P. Samuelson, "Is information property? (Legally Speaking)," Communications of the ACM, March 1991, v34 n3 p15(4)

[5] The Constitution of the United States of America, Article I, Sec. 8, clause 8.

[6] M. Godwin, "When copying isn't theft: how the government stumbled in a 'hacker' case," Internet World, Jan./Feb. 1994.

[7] P. Samuelson, "Copyright law and electronic compilations of data," Communications of the ACM, Feb 1992 v35 n2 p27(6)