Fair trespass

Columbia Law Review

Volumn 111, Issue 5, 2011, Pages 1090-1136

  Depoorter, Ben ^a  

^a GHENT UNIVERSITY   (Belgium)

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EID: 79958229330     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (372)

1. Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 156-157+166 (Wis. 1997) (holding $100,000 in punitive damages not disproportional amount where defendant intentionally trespassed onto neighbor's land after neighbor refused access for transport purposes).
2. Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies, at v (2007) ("The most basic principle is that property at its core entails the right to exclude others from some discrete thing.").
3. EBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058-1067 (N.D. Cal. 2000) ("[A]n injunction is an appropriate remedy for a continuing trespass to real property.").
4. Thomas W. Merrill, Trespass, Nuisance, And the Costs of Determining Property Rights, 14 J. Legal Stud. 13, 13 (1985) [hereinafter Merrill, Costs of Determining] (noting "when the intrusion is governed by trespass. The landholder can obtain an injunction to prevent future invasions").
5. Jacque, 563 N.W.2d at 159-160 (recognizing legal prerogative of property owners to exclude all others from their land, regardless of reason for doing so).
6. Desnick v. Am. Broad. Cos., 44 F.3d 1345-1351 (7th Cir. 1995).
7. James A. Albert, The Liability of the Press for Trespass and Invasion of Privacy in Gathering the News-A Call for the Recognition of a Newsgathering Tort Privilege, 45 N.Y.L. Sch. L. Rev. 331, 333 (2002) (discussing Houston newspaper using "deceit to gain entry to a nursing home to photograph the mistreatment of elderly residents who were tied to their beds").
8. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 510 (4th Cir. 1999) (finding undercover reporters posing as employees at food chain liable for trespass and breach of duty of loyalty to employer).
9. Desnick, 44 F.3d at 1347-1349+1351-1353 (finding no trespass where undercover reporters posed as patients at ophthalmic clinic, because "the entry was not invasive in the sense of infringing the kind of interest of the [owners] that the law of trespass protects").
10. Albert, supra note 6, at 334 (documenting how investigative reporters broke "several major stories" by resorting to trespass).
11. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 423-425+441 (1982) (discussing New York appellate court's holding regarding one dollar statutory award of compensation for continuing trespass);
12. Food Lion, 194 F.3d at 511, 519 (finding liability but limiting damages to one dollar for trespass claim).
13. Desnick, 44 F.3d at 1351-1352 (creating exception for consensual, nonharmful entry, even when fraudulently obtained).
14. State v. Shack, 277 A.2d 369, 374-375 (N.J. 1971) (creating exception for government workers to provide public health information to migrant farmworkers housed by employer).
15. Jeremy Bentham, The Theory of Legislation 111-113 (C.K. Ogden ed., Richard Hildreth trans., Harcourt Brace Co. 1931) (1802) (referring to property as "nothing but a basis of expectation" and arguing laws must be understood to regulate expectation effectively);
16. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607-608 (1958) ("If a penumbra of uncertainty must surround all legal rules, then their application... cannot be a matter of logical deduction, and so deductive reasoning, which... has been cherished as the very perfection of human reasoning, cannot serve as a model for what judges, or indeed anyone, should do.").
17. Jason Scott Johnston, Uncertainty, Chaos, and the Torts Process: An Economic Analysis of Legal Form, 76 Cornell L. Rev. 341, 341 (1991) ("One of the central concerns of contemporary post-Realist jurisprudence is legal determinacy-the ability to formulate legal rules that yield certain or at least predictable outcomes at least some of the time.").
18. Anthony D'Amato, Legal Uncertainty, 71 Calif. L. Rev. 1, 2 (1983) (describing trend towards greater complexity)
19. Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. Legal Stud. 257, 257-258 (1974) (examining optimal level of rule precision or determinacy);
20. Werner Z. Hirsch, Reducing Law's Uncertainty and Complexity, 21 UCLA L. Rev. 1233, 1233-1234 (1974) (examining claim that making laws less complex benefits society).
21. Desnick, 44 F.3d at 1352.
22. Id. at 1351 (discussing these scenarios and concluding they would either be "privileged trespasses" or have "implied consent");
23. Gideon Parchomovsky & Alex Stein, Reconceptualizing Trespass, 103 Nw. U. L. Rev. 1823, 1853-1854 (2009) (discussing Desnick opinion).
24. Now codified at 17 U.S.C. § 107 (2006). For a discussion of the statutory provisions, see infra notes 137-151 and accompanying text. Although this is not a crucial aspect of the proposal, a defendant could raise the fair trespass standard as an affirmative defense, as fair use is used in copyright law. Courts would only need to engage in the proposed analysis when the alleged trespasser raises the defense, which could reduce overall administrative costs. This risks, however, losing some socially beneficial instances of trespass if the defendant somehow fails to raise the defense of fair trespass.
25. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-578 (1994) (explaining courts must consider and balance all parts of fair use doctrine in rendering a decision and that fulfilling one factor does not necessarily amount to showing of fair use);
26. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417-455 n.40 (1984) ("Congress has plainly instructed us that fair use analysis calls for a sensitive balancing of interests.").
27. While Blackstone is sometimes associated with an absolutist conception of property.
28. see 2 William Blackstone, Commentaries *1-*2 (describing property right as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe"), he actually conceived of property as consisting of a bundle of rights.
29. David B. Schorr, How Blackstone Became a Blackstonian, 10 Theoretical Inquiries L. 103, 109-110 (2009) (discussing Blackstone's exceptions to law of trespass and arguing they show Blackstone regarded property as collection of rights);
30. Thomas J. Miceli, The Economic Approach to Law 162 (2004) (explaining bundle of property rights typically consists of rights to exclude, to use, and to dispose). Miceli,
31. supra note 17
32. At 163 (explaining "[i]ncomplete property rights lead to inefficiencies of both exchange and production" such that to exchange and produce at socially optimal rates, owners "have to be confident that [they] alone have the legal right to sell [their] property, and. the exclusive rights to use it").
33. Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 747-752 (1998) (arguing right to exclude is defining characteristic of property).
34. Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (2000) (arguing capitalism fails in developing countries because of lack of clear and precise property rights and system for recording them).
35. Richard A. Epstein, How to Create-or Destroy-Wealth in Real Property, 58 Ala. L. Rev. 741 (2007) (explaining how clear-cut property rights, such as right to exclude, are necessary for accumulation of economic wealth in society).
36. John Locke, Two Treatises of Government 287-288 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690) (arguing property rights are created by mixing labor with natural objects, e.g., by developing land);
37. Robert Nozick, Anarchy, State, and Utopia 153-155 (1974) (claiming property rights are vested in people based on "fruits of their labor").
38. Joseph William Singer, Property 25 (3d ed. 2010) [hereinafter Singer, Property] ("The interest in 'exclusive possession' refers to the ability to prevent others from using or invading the property without the owner's or possessor's consent.").
39. The classic example is Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 160 (Wis. 1997) (finding actual harm in every intentional trespass worthy of at least nominal damage award, because intentional trespass violates property owner's right to exclude any other person from his or her land, regardless of reason);
40. Poff v. Hayes, 763 So. 2d 234, 240 (Ala. 2000) ("[T]respass. 'is a wrong against the right of possession."' (quoting Jefferies v. Bush, 608 So. 2d 361, 362 (Ala. 1992)))
41. Munsey v. Hanly, 67 A. 217, 217 (Me. 1907) ("The gist of the action of trespass quare clausum is the disturbance of the possession.").
42. Lane v. Mims, 70 S.E.2d 244-246 (S.C. 1952) ("[T]he action of trespass quare clausum fregit is founded upon possession....");
43. Austin v. Hallstrom, 86 A.2d 549, 549 (Vt. 1952) ("The gist of the action of trespass upon the freehold is the injury to the possession.").
44. Restatement (Second) of Torts §§ 157-166 (1965).
45. Dandoy v. Oswald, 298 P. 1030-1031 (Cal. Ct. App. 1931) ("To hold that appellant is without remedy merely because the value of land has not been diminished [by contested trespass], would be. A denial of the principle that there is no wrong without a remedy."). In this respect, the tort of trespass to land differs from trespass to chattel, which requires an element of harm. Section 217 of the Restatement (Second) of Torts defines the tort of trespass to chattel as the intentional dispossession of a chattel belonging to another or the use of or the "intermeddling with a chattel in the possession of another." Restatement (Second) of Torts § 217. Section 218 of the Restatement recognizes a cause of action for dispossession or intermeddling that harms the chattel or an owner's chattelrelated legal interests. Id. § 218.
46. Jesse Dukeminier et al., Property Law 735-736 (7th ed. 2010) [hereinafter Dukeminier et al., 7th ed.] (pointing out courts have defined trespass as "'any intrusion which invades the possessor's protected interest in exclusive possession, whether that intrusion is by visible or invisible pieces of matter"' (quotingMartin v. Reynolds Metals Co., 342 P.2d 790-794 (Or. 1959))).
47. Singer, Property, supra note 23, at 28 (asserting that, to prove intentional trespass, "all plaintiff need show is that defendant intended to enter the plaintiff's land" and that "[i]t is irrelevant whether defendant knew she was entering land possessed by another").
48. Generally Restatement (Second) of Torts § 166 (noting potential liability for intrusions onto owner's property where such intrusions were negligent or caused by abnormally dangerous activities); Laura Quilter, The Continuing Expansion of Cyberspace Trespass to Chattels, 17 Berkeley Tech. L.J. 421, 427 n.52 (2002) (explaining trespasses committed unintentionally may still receive nominal damages).
49. William J. Bowman & Patrick F. Hofer, The Fallacy of Personal Injury Liability Insurance Coverage for Environmental Claims, 12 Va. Envtl. L.J. 393, 410 (1993) ("[T]respass does not require proof that the trespasser used force to intrude on land, nor does it require proof that the trespasser intended to take possession.").
50. Dan L. Burk, The Trouble With Trespass, 4 J. Small & Emerging Bus. L. 27, 33 (2000) (noting shrinking requirement of physical intrusion for trespass to land).
51. Quilter, supra note 26, at 427 (explaining trespass law helps to protect owner's best interests by preventing adverse and unwanted claims on land).
52. eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058-1067 (N.D. Cal. 2000) ("[A]n injunction is an appropriate remedy for a continuing trespass to real property.").
53. MacMillan Bloedell, Inc. v. Ezell, 475 So. 2d 493-498 (Ala. 1985) (concluding injunction appropriate but fails under circumstances of case).
54. Desnick v. Am. Broad. Cos., 44 F.3d 1345-1351 (7th Cir. 1995) ("To enter upon another's land without consent is a trespass.").3 Blackstone, supra note 17, at *209 (explaining any entry onto land without permission is trespass).
55. Michael L. Rustad & Thomas H. Koenig, Taming The Tort Monster: The American Civil Justice System as a Battleground of Social Theory, 68 Brook. L. Rev. 1, 24 (2002) (noting whether trespass is willful or unintentional may affect amount of damages awarded).
56. Cf. Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154-165 (Wis. 1997) ("Steenberg's egregious conduct could scarcely have been contemplated by the legislature when it enacted this statute which provides a penalty for simply 'entering or remaining' on the land of another.").
57. William L. Prosser, Handbook of the Law of Torts § 7, at 29 (3d ed. 1964) (explaining nominal damages may be awarded even though no actual damages occurred).
58. Merrill, Costs of Determining, supra note 3, at 13-14 (noting because injunctions encourage ex ante negotiations in low transaction cost settings, strict liability property rules are most appropriate remedy in most typical trespass disputes).
59. Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 Va. L. Rev. 965, 968-969 (2004) (discussing role of information costs for selection of property rules).
60. 563 N.W.2d at 160 ("Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished.").
61. Id. at 157.
62. Id. at 166
63. Robert G. Crawford, Benjamin Klein & Armand A. Alchian, Vertical Integration, Appropriable Rents, and the Competitive Contracting Process, 21 J.L. & Econ. 297, 298-302 (1978) (explaining vertical integration as response to potential opportunistic behavior in conflict situations where relationship-specific investments are sunk by other party). The concern with absolute property right protection has also been raised on the basis of distributional concerns.
64. Morris R. Cohen, Property and Sovereignty, 13 Cornell L.Q. 8, 27-30 (1927) (arguing property entitlements can confer equally despotic dominion over persons);
65. Joseph William Singer, Legal Theory: Sovereignty and Property, 86 Nw. U. L. Rev. 1, 8 (1991) ("Seemingly neutral definitions of property rights by the courts distribute power and vulnerability in ways that construct illegitimate hierarchies based on race, sex, class, disability and sexual orientation.").
66. Thomas J. Miceli & C.F. Sirmans, An Economic Theory of Adverse Possession, 15 Int'l Rev. L. & Econ. 162, 162-165 (1995) (providing analogous good faith adverse possession example of landowner's windfall where he or she can capitalize on adverse possessor's improvements to property due to landowner's ability to evict adverse possessor).
67. In bilateral monopolies, situations where the bargaining occurs between a single buyer and seller, outcomes generally depend on the relative bargaining power of each party. However, without any market with competitive pricing, there is no guarantee that an agreement will be reached.
68. Robert Cooter, The Cost of Coase, 11 J. Legal Stud. 1, 28 (1982) (distinguishing between optimistic and pessimistic accounts of bargaining and explaining "strategic behavior sometimes results in noncooperative outcomes"). Bargaining failures occur, for instance, when rights holders overestimate the value at stake for the other party.
69. Lloyd Cohen, Holdouts and Free Riders, 20 J. Legal Stud. 351, 358-359 (1991) (distinguishing between dynamics of holdout and free riders in bargaining). In the literature that seeks to explain settlement failures, a distinction is made between litigation caused by situations where one of the parties either overestimates his or her legal claim (dissolving the bargaining range) and where a party overestimates his or her ability to extract a larger share from the opposing party (causing a bargaining breakdown).
70. Keith N. Hylton, Asymmetric Information and the Selection of Disputes for Litigation, 22 J. Legal Stud. 187, 190 (1993) (presenting attempt to "extend[] the standard litigation model by taking into account informational constraints and efforts to rationally predict trial outcomes").
71. Kathryn E. Spier, The Dynamics of Pretrial Negotiation, 59 Rev. Econ. Stud. 93, 95-102 (1992) (developing model of sequential bargaining with one-sided, incomplete information). On strategic behavior as a cause of litigation.
72. see Robert Cooter et al., Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior, 11 J. Legal Stud. 225, 227-234 (1982) (developing strategic model for analyzing settlement negotiations).
73. Stockman v. Duke, 578 So. 2d 831, 832-833 (Fla. Dist. Ct. App. 1991) (finding no difference in value of land before and after trespass and thus reducing actual damages awarded by trial court to one dollar of nominal damages).
74. Brown v. Smith, 920 A.2d 18-32 (Md. Ct. Spec. App. 2007) (finding nominal damage award of $8,350 to trespass victim excessive and remanding to trial court to determine appropriate compensatory damages, if any).
75. Thomas v. Harrah's Vicksburg Corp., 734 So. 2d 312-321 (Miss. Ct. App. 1999) (holding plaintiff must prove defendant "acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud" to receive punitive damages).
76. Shiffman v. Empire Blue Cross & Blue Shield, 681 N.Y.S.2d 511-512 (N.Y. App. Div. 1998) (finding no punitive damages available when reporters gain entrance to medical clinic fraudulently because entry was not motivated by malice).
77. Tex. Elec. Serv. Co. v. Linebery, 333 S.W.2d 596-599 (Tex. Civ. App. 1960) (holding actual damages must be recoverable before exemplary damages may be awarded).
78. Desnick v. Am. Broad. Cos., 44 F.3d 1345-1351 (7th Cir. 1995) (noting concepts of privilege and implied consent have diluted rule that entering another's land without consent is trespass).
79. Fla. Publ'g Co. v. Fletcher, 340 So. 2d 914, 917-919 (Fla. 1976) (noting news reporters entering burning property have implied consent due to customary usage of property at time of emergency).
80. West v. Faurbo, 384 N.E.2d 457-458 (Ill. App. Ct. 1978) (noting private necessity privilege exception to trespassing is created when trespasser has immediate need to enter land);
81. Northside Realty Assocs. v. United States, 605 F.2d 1348-1355 (5th Cir. 1979) (finding government agents investigating violations of Fair Housing Act were not trespassers because they behaved exactly as prospective home buyers visiting real estate office would be expected to behave). W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 24, at 147-148
82. 5th ed. 1984) (describing doctrine of necessity in trespass law).
83. Restatement (Second) of Torts § 197 (1965).
84. United States v. Schoon, 955 F.2d 1238-1239+1240 (9th Cir. 1991) (describing various cumulative conditions for applying doctrine of necessity).
85. Singer, Property, supra note 23, at 38 (describing various requirements for necessity, including being "faced with a choice of evils and [choosing] the lesser," presence of "imminent harm," "direct causal relationship" between conduct and harm, and "no legal alternatives to violating the law").
86. Lange v. Fisher Real Estate Dev. Corp., 832 N.E.2d 274, 279 (Ill. App. Ct. 2005) (describing requirements of private necessity justification and finding them unmet where taxi driver was unthreatened by his passenger but pursued "fleeing fare" onto owner's property).
87. See 3 Blackstone
88. supra note 17
89. at *209 ("[E]very man's land is in the eye of the law enclosed and set apart from his neighbour's.").
90. Shyamkrishna Balganesh, Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions, 31 Harv. J.L. & Pub. Pol'y 593-596 (2008) ("The idea of exclusion, in one form or the other, tends to inform almost any understanding of property, whether private, public, or community.").
91. See supra notes 17-22 And accompanying text (describing various conceptions of property right and preeminence of right to exclude).
92. See 3 Blackstone
93. supra note 17
94. at *209 (explaining any entry onto land without permission is trespass).
95. See supra notes 10-11+42-43, and accompanying text (discussing manner by which courts carve out exceptions to trespass, or at least limit damages significantly).
96. See infra Part II.A-C.
97. See infra Part II.D.
98. Restatement (Third) of Prop.: Servitudes §§ 2.15-2.17 (2000).
99. see also Holbrook v. Taylor, 532 S.W.2d 763+764 (Ky. 1976) (citing Grinestaff v. Grinestaff, 318 S.W.2d 881 (Ky. 1958), for elements of easement and noting easements can attach "by express written grant, by implication, by prescription, or by estoppel").
100. Michael V. Hernandez, Restating Implied, Prescriptive, and Statutory Easements, 40 Real Prop. Prob. & Tr. J. 75, 103-105 (2005) (summarizing law and history of prescriptive easements).
101. Jesse Dukeminier et al., Property, 696-699 (6th ed. 2006) [hereinafter Dukeminier et al., 6th ed.] (noting historical development through case law of prescriptive easements to protect regular uses of land).
102. Interior Trails Pres. Coal. v. Swope, 115 P.3d 527+530 (Alaska 2005) (requiring ten-year period of continuous use to establish prescriptive easement).
103. see also Warsaw v. Chi. Metallic Ceilings, Inc., 676 P.2d 584-589 (Cal. 1984) ("[I]f the requisite elements of a prescriptive use are shown[,] '[s]uch use for the five-year statutory period. confers a title by prescription."' (quoting Taormino v. Denny, 463 P.2d 711, 714 (Cal. 1970))).
104. McDonald v. Sargent, 13 N.W.2d 843-844 (Mich. 1944) (requiring unopposed, continuous trespass for fifteen years).
105. Generally Hernandez, supra note 54, at 106-107.
106. Dukeminier et al., 6th ed., supra note 55, at 699-658. Id.
107. In order to establish an easement by necessity, three conditions must be fulfilled: (1) There must have been a unity of ownership of the alleged dominant and servient estates at one time.
108. The use must be a necessity, not a mere convenience.
109. And (3) the necessity must have existed at the time of severance of the two estates. Restatement (Third) of Prop.: Servitudes § 2.15.
110. Othen v. Rosier, 226 S.W.2d 622, 625-626 (Tex. 1950) (finding no implied easement because petitioner had not made requisite showing that roadway in use "was a necessity on the date of [the severance], rather than a mere convenience").
111. Schwab v. Timmons, 589 N.W.2d 1, 6-9 (Wis. 1999) (finding no easement by necessity where petitioner could access allegedly landlocked parcel by use of public road and deeming cost of accessing said road directly to and from parcel irrelevant).
112. Ill. Dist. of Am. Turners, Inc. v. Rieger, 770 N.E.2d 232, 243-244 (Ill. App. Ct. 2002) ("The owner of an easement is entitled to full enjoyment and every right connected to the enjoyment of the easement but has no right to interfere with the landowner's control and beneficial use of the land further than is necessary for the reasonable enjoyment of his easement." (emphasis added)).
113. Weaver v. Cummins, 751 N.E.2d 628-632 (Ill. App. Ct. 2001) ("Requiring plaintiffs to install culverts, build a pond, and bring in large amounts of fill to construct a potentially dangerous road is unreasonable when a road over defendants' property exists to allow plaintiffs safe access to the public road.").
114. McCumbers v. Puckett, 918 N.E.2d 1046-1051 (Ohio Ct. App. 2009) (describing prescriptive easement as extending to whatever "'is reasonably necessary and convenient to serve the purpose for which the easement was granted"' (quoting Crane Hollow, Inc. v. Marathon Ashland Pipe Line, LLC, 740 N.E.2d 328, 334 (Ohio Ct. App. 2000))).
115. McCoy v. Hoffman, 295 S.W.2d 560-561 Ky. 1956).
116. see also McCumbers, 918 N.E.2d at 1050 (citing relevant precedent that indicated "easement by estoppel may be created where a landowner, without objection, permits another to expend money in reliance upon a supposed easement, when in justice and equity the former ought to have asserted his conflicting rights, and therefore should be estopped to deny the easement"). The Restatement provides: If injustice can be avoided only by establishment of a servitude, the owner or occupier of land is estopped to deny the existence of a servitude burdening the land when: (1) the owner or occupier permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the user did substantially change position in reasonable reliance on that belief.or (2) the owner or occupier represented that the land was burdened by a servitude under circumstances in which it was reasonable to foresee that the person to whom the representation was made would substantially change position on the basis of that representation, and the person did substantially change position in reasonable reliance on that representation. Restatement (Third) of Prop.: Servitudes § 2.10.
117. Stoner v. Zucker, 83 P. 808-810 (Cal. 1906).
118. Although there are many functional analogies between adverse possession, on the one hand, and prescriptive easements and estoppel, on the other hand, the latter doctrines involve entitlements to specific uses of the property, while the former pertains to the ownership of a land parcel.
119. Dukeminier et al., 6th ed., supra note 55, at 112-143 (explaining history, purpose, and doctrinal aspects of adverse possession).
120. See John W. Reilly, The Language of Real Estate 14 (5th ed. 2000) (noting defeating adverse possession claims requires owner to take affirmative steps such as "reentry, an action for ejectment or an action to quiet the title").
121. 16 Richard R. Powell, Powell on Real Property § 91.10[1] (Michael Allan Wolf ed., 2007) (discussing origins and history of statutes of limitations for adverse possession). For an overview of state statutes of limitations, see Matthew Baker et al., Property Rights by Squatting: Land Ownership Risk and Adverse Possession Statutes, 77 Land Econ. 360-366 (2001).
122. Dukeminier et al., 6th ed., supra note 55, at 115.
123. Reilly, supra note 65, at 13.
124. Dukeminier et al., 6th ed., supra note 55, at 124;
125. Roberts v. Feitz, 933 N.E.2d 466, 480 (Ind. Ct. App. 2010) (stating requirements of adverse possession as "control, intent, notice and duration [] for a period of ten years" but finding no adverse possession because possession was "well under the statutory requirement for adverse possession");
126. Evanich v. Bridge, 893 N.E.2d 481-483 (Ohio 2008) ("[T]o succeed in acquiring title by adverse possession, the claimant must show exclusive possession that is open, notorious, continuous, and adverse for [the statutory period of] 21 years."). A common generalization about entry and exclusive possession is that it must be the "use of the property in the manner that an average true owner would use it under the circumstances."
127. Dukeminier et al., 6th ed.,
128. supra note 55, at 125. For an illuminating overview and historical description of public access rights,
129. Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1303-411 (1996) [hereinafter Singer, No Right to Exclude].
130. U.S. Const. amend. V ("No person shall be... deprived of life, liberty, or property, without due process of law."); id. amend. XIV, § 1 ("[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.").
131. 366 A.2d 641 (N.J. 1976).
132. Id. at 642-43.
133. The board of trustees for each hospital selected a policy of permitting only therapeutic abortions.
134. Id. at 643.
135. Id. at 645
136. "The properties of these hospitals are devoted to a use in which the public has an interest and are subject to control for the common good."). Moreover, the court in Bridgeton analogized hospitals to common carriers, arguing that common carriers are not allowed to refuse entry to individuals unless there is some rational basis for doing so.
137. Id. at 646 (noting common carriers had to "receive and lodge all comers in the absence of a reasonable ground of refusal," such as lack of space).
138. Id. at 645.
139. In the context of the Equal Protection Clause of the Fourteenth Amendment of the Constitution, privately owned restaurants have been required to grant general access to the public. For example, in Burton v. Wilmington Parking Authority, the Supreme Court concluded that a restaurant's refusal to serve an African American man based on his race constituted "discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment." 365 U.S. 715-717 (1961). While the Constitution only bans discriminatory policies that are conducted by the state, the Court concluded that the restaurant was a state actor, and thus subject to the restraints of the Constitution, because of the peculiar relationship between the city's parking authority and the restaurant.
140. Id. at 724.
141. Uston v. Resorts Int'l Hotel, Inc., 445 A.2d 370-375 (N.J. 1982) (holding that, unless provided otherwise by applicable gambling regulation, casino owners have right and duty to exclude from their casinos only those who "'disrupt the regular and essential operations of the premises"' (alteration omitted) (quoting State v. Schmid, 423 A.2d 615, 631 (N.J. 1980))). But some courts, in a contrary trend, have held that public accommodation duties do not extend beyond common carriers to include all businesses, such as retail stores and supermarkets.
142. See, e.g., Brooks v. Chi. Downs Ass'n, 791 F.2d 512, 517-519 (7th Cir. 1986) (denying public accommodation right because reputation and competitive effects provide reassuring incentives to businesses not to exclude unreasonably).
143. Uston v. Airport Casino, Inc., 564 F.2d 1216-1217 (9th Cir. 1977) ("The policies upon which the innkeeper's special common law duties rested are not present in [a relationship between a casino owner and prospective gambler]."). For a discussion of public accommodation rights.
144. Singer, No Right to Exclude, supra note 71, at 1404 (documenting history of public accommodation rights and duties).
145. 277 A.2d 369, 371-72 (N.J. 1971).
146. This is an example of a situation where the mere presence of nonowners on the land negated the property owner's rights of exclusion.
147. Id. at 373.
148. Id. at 371-72.
149. Helen Hershkoff, The New Jersey Constitution: Positive Rights, Common Law Entitlements, and State Action, 69 Alb. L. Rev. 553, 553 (2006).
150. According to some commentators, Shack represents an instance where "private use and enjoyment is subject to a set of highly indeterminate collective interests to be defined and weighed case by case." Emily Sherwin, Two- and Three-Dimensional Property Rights, 29 Ariz. St. L.J. 1075-1094 (1997).
151. Michele Cortese, Property Rights and Human Values: A Right of Access to Private Property for Tenant Organizers, 17 Colum. Hum. Rts. L. Rev. 257, 268 (1986)
152. "The Shack decision focused on the human values served by granting access to farm property, and weighed them against the owner's property rights."). By forcing a landowner to open his property to government workers seeking to help migrant employees, Shack exemplifies the courts' willingness to extend state constitutional rights into the private sphere.
153. Folgueras v. Hassle, 331 F. Supp. 615, 623 (W.D. Mich. 1971)
154. Holding owner of migrant labor camps "may not constitutionally deprive the migrant laborers living in his camps, or members of assistance organizations, or mere visitors of reasonable access to his camps");
155. State v. DeCoster, 653 A.2d 891-895 (Me. 1995)
156. Upholding injunction prohibiting employer from "placing or maintaining a sign in front of DeCoster housing instructing persons either not to enter, not to trespass, or to seek permission from the office before visiting" (internal quotation marks omitted));
157. Baer v. Sorbello, 425 A.2d 1089-1090 (N.J. Super. Ct. App. Div. 1981)
158. Entertaining plaintiff's defense to counterclaim for trespass on basis of Shack where state legislator had entered private farm for purpose of inspection);
159. Freedman v. N.J. State Police, 343 A.2d 148-151 (N.J. Super. Ct. Law Div. 1975)
160. Holding rights of migrant farm workers to receive visitors and rights of newspaper reporters and other visitors "must be exercised reasonably").
161. Unlike the First Amendment, which protects free speech as a negative right, U.S. Const. amend. I ("Congress shall make no law. Abridging the freedom of speech."), many state constitutions grant free speech as an affirmative right.
162. See, e.g., Ohio Const. art. I, § 11 ("Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right."). Over forty state constitutions grant an affirmative right to free speech.
163. Joseph H. Hart, Free Speech on Private Property-When Fundamental Rights Collide, 68 Tex. L Rev. 1469, 1470 (1990). Some of those states have granted the right to free speech on private property, while others have not.
164. Id. at 1474 n.31 (describing various courts' treatment of state free speech rights on private property).
165. Green Party of N.J. v. Hartz Mountain Indus., Inc., 752 A.2d 315, 321-32 (N.J. 2000)
166. Analyzing variety of court tests for balancing rights of citizens to speak and assemble freely with private property rights of owners, and declaring unconstitutional private shopping mall rule requiring $1 million insurance policy to allow leafletting).
167. see also infra text accompanying notes 85-94 (providing additional examples of courts finding state constitutional violations). Several other states have rejected this approach.
168. Whole Foods Mkt. Grp., Inc. v. Sarasota Coal. for a Living Wage, No. 2007 CA 002208 NC, 2010 WL 2380390, ¶¶ 2-3, 5, 13, 18-19, 21 (Fla. Cir. Ct. Mar. 31, 2010) (finding private entity engaged in business on private property entitled to exercise its antisolicitation policy on interior sidewalk at entrance to its grocery store).
169. Cahill v. Cobb Place Assocs., 519 S.E.2d 449+450 (Ga. 1999) (affirming lower court in deciding state constitutional free speech guarantee did not prevent shopping mall owner from prohibiting distribution of religious literature in violation of mall policy);
170. Estes v. Kapiolani Women's & Children's Med. Ctr., 787 P.2d 216, 220-21 (Haw. 1990)
171. Finding hospital policy preventing distribution of leaflets and other antiabortion expression was not state action within meaning of free speech guarantee);
172. People v. DiGuida, 604 N.E.2d 336, 346 (Ill. 1992)
173. Finding prosecution of defendant for criminal trespass based on solicitation of signatures for political petition on private grocery store's property did not violate free speech clause of Illinois Constitution absent showing that store had "presented itself as a forum for free expression");
174. Southcenter Joint Venture v. Nat'l Democratic Policy Comm., 780 P.2d 1282, 1285 (Wash. 1989)
175. Holding "[t]he free speech provision of the Constitution of the State of Washington... does not protect an individual against the actions of other private individuals" and "thus does not afford. a constitutional right to solicit contributions and sell literature at the mall").
176. 592 P.2d 341 (Cal. 1979), aff'd, 447 U.S. 74-88 (1980). With this decision, the California courts went against the federal trend, which had established that federal law does not grant free speech rights on private property unless that property has completely taken on all the characteristics of public property.
177. Marsh v. Alabama, 326 U.S. 501, 507-09 (1946)
178. Finding company-owned town is governed by same federal constitutional constraints as municipality where citizens in company-owned towns have as much interest in and right to information enabling them to act as any other citizens). On the federal level, a few early discussions favored access for the purpose of free speech. For example, in Marsh, the Supreme Court allowed Jehovah's Witnesses to distribute literature in the business district of a company-owned town, because the town functioned like any other public town. Marsh, 326 U.S. at 502, 507-09. Then, in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza Inc., the Court extended Marsh and allowed picketing in a privately owned shopping center because the center was the "functional equivalent" of the Marsh business district. 391 U.S. 308, 318 (1968), abrogated by Hudgens v. NLRB, 424 U.S 507 (1976). These cases were overturned by Hudgens, 424 U.S. 507 (holding federal law does not grant free speech rights on private property unless that property has completely taken on all characteristics of public property), and Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (finding picketing at privately owned mall used solely for private purposes was not protected free speech under federal constitution). The Court, however, stated that Lloyd does not limit states from expanding their own constitutions to grant greater individual liberties. Pruneyard, 447 U.S. at 81 ("Our reasoning in Lloyd, however, does not. limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.").
179. Pruneyard, 592 P.2d at 346-48
180. "We conclude that... the California Constitution protect[s] speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.").
181. Pruneyard, 447 U.S. at 83.
182. These factors share some common ground (especially the first and last factor) with the general, four-factor balancing test proposed in Part III.C, infra. This test determines more generally whether to excuse trespassory acts when the social interests in access outweigh the costs to the property owner, based not on the test first developed in State v. Schmid as articulated in Pruneyard, but rather on the fair use balancing standard developed in copyright law.
183. Pruneyard, 447 U.S. at 83
184. "There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center.").
185. By contrast, in Golden Gateway Center v. Golden Gateway Tenants Ass'n, the California Supreme Court denied free speech rights in a private apartment complex. 29 P.3d 797, 810 (Cal. 2001)
186. "[T]he Complex, unlike the shopping center in [Pruneyard], is not the functional equivalent of a traditional public forum."). In addition, several appellate court decisions denied the existence of free speech rights in large stores and supermarkets, distinguishing Pruneyard most often by finding that the individual stores did not open themselves up for use as public property.
187. Lushbaugh v. Home Depot U.S.A., Inc., 113 Cal. Rptr. 2d 700-704 (Ct. App. 2001) (finding Home Depot store did not encourage public to linger on its premises because it "provided little beyond a hot dog stand and classes directly related to marketing its home improvement products").
188. Trader Joe's Co. v. Progressive Campaigns, 86 Cal. Rptr. 2d 442- 449 (Ct. App. 1999) (finding Trader Joe's was not public meeting place or forum because it contained no plazas, walkways, connections to other establishments, or a central courtyard where patrons could congregate and spend time together). Malls were distinguishable because they invited people to come to the mall and congregate.
189. Savage v. Trammell Crow Co., 273 Cal. Rptr. 302-312 (Ct. App. 1990) (finding Del Norte Plaza accessible location to promote ideas because, though it was smaller than shopping center in Pruneyard, both plazas included retail shops, restaurants, and cinemas).
190. see also Adrienne Iwamoto Suarez, Covenants, Conditions, and Restrictions. On Free Speech? First Amendment Rights in Common-Interest Communities, 40 Real Prop. Prob. & Tr. J. 739, 750-751 (2006) (discussing procedural posture of Pruneyard).
191. However, in 2007, the California Supreme Court reaffirmed Pruneyard in Fashion Valley Mall v. NLRB, 172 P.3d 742, 745-746 (Cal. 2007).
192. 89. 423 A.2d 615-630 (N.J. 1980).
193. 650 A.2d 757-761 (N.J. 1994). The court applied the first two Schmid factors, concluding that the shopping center was largely for public use and that the general public was invited to go into the premises for any purpose.
194. Id. As to the third factor, the court concluded that the leafletting could not have been contrary to the normal use of the property because the property owners invited everyone onto the property for any purpose.
195. Id. In addition to the Schmid test, the court also weighed free speech rights against the owner's private property rights, stating that an owner loses private property rights as the public use of the property increases.
196. Id. at 775. In this case, the shopping center was open for use by anyone, and therefore the protestor's actions could not further reduce the owner's private property rights. Thus, the balance weighed heavily in favor of free speech.
197. Id. at 775-776. Note that, up until that point, no other court had granted such rights inside private property.
198. Armando A. Flores, Free Speech and State Constitutional Law: Recent Developments, Developments in State Constitutional Law: 1994, 26 Rutgers L.J. 1000, 1001 (1995) ("In New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., New Jersey became the first state to recognize the right of its citizens to engage in leafletting inside enclosed, privately-owned, regional shopping centers.").
199. 688 A.2d 156-159 (N.J. Super. Ct. Ch. Div. 1996) ("A level playing field requires equal access to this condominium because it has become in essence a political company town. in which political access controlled by [Galaxy Towers] is the only game in town." (internal quotation marks omitted)). The condominium association had previously allowed politicians to distribute campaign flyers within the community.
200. Id. at 157. As a result, the court held that the association had opened its property for public use and that it therefore had to allow others to distribute information to the residents.
201. Id. at 159.
202. For example, in New Jersey v. T.L.O., The Supreme Court stated: Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires "balancing the need to search against the invasion which the search entails." On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security.
203. on the other, the government's need for effective methods to deal with breaches of public order. 469 U.S. 325-337 (1985) (citation omitted) (quoting Camara v. Mun. Court, 387 U.S. 523, 536-37 (1967)).
204. The Fifth Amendment of the United States Constitution contains important protections against federal confiscation of private property. It states: "No person shall be. deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V. 97. For a few examples where courts have recognized customary rights of access in beach areas.
205. City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73-78 (Fla. 1974) (holding oceanfront property owner cannot interfere with recreational use of sandy area of beach adjacent to "mean high tide" if public use of said area is "ancient, reasonable, without interruption and free from dispute").
206. Stevens v. City of Cannon Beach, 854 P.2d 449-456 (Or. 1993) ("When plaintiffs took title to their land, they were on notice that exclusive use of the dry sand areas was not a part of [their] 'bundle of rights'. Because public use of dry sand areas 'is so notorious that notice of the custom.Must be presumed."' (quoting State ex rel. Thornton v. Hay, 462 P.2d 671, 678 (Or. 1969))).
207. Matcha v. Mattox, 711 S.W.2d 95, 97-101 (Tex. App. 1986) (finding public acquired easement by custom on beach in vicinity of owners' property after hurricane moved natural line of vegetation landward).
208. Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 362-363 (N.J. 1984) (noting public trust doctrine historically extended to use of land below "mean average high water mark where the tide ebbs and flows" and "[i]n order to exercise these rights guaranteed by the public trust doctrine, the public must have access to municipallyowned dry sand areas as well as the foreshore").
209. Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc., 879 A.2d 112-113 (N.J. 2005) ("[T]he public trust doctrine requires the Atlantis [upland sand beach] property to be open to the general public. ").
210. Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47-55 (N.J. 1972) (noting New Jersey "ha[s] readily extended the [public trust] doctrine. to cover other public uses, and especially recreational uses," and thus "while municipalities may validly charge reasonable fees for the use of their beaches, they may not discriminate in any respect between their residents and nonresidents").
211. Hay, 462 P.2d at 673 (holding property owners' "use and enjoyment of [their] dry-sand area" did not extend to fencing in parts of their beach property because doing so interfered with public's "easement for recreational purposes to go upon and enjoy the dry-sand area"). This right was somewhat limited in McDonald v. Halvorson, 780 P.2d 714 (Or. 1989). In that case, the court upheld the rule in Hay, but limited it solely to areas abutting the ocean where "their public use has been consistent with the doctrine of custom as explained in Hay."
212. Id. at 724. As such, the court held the Hay rule inapplicable to the beach in question, because it did not abut the ocean and there was no showing of customary public use.
213. City of Annapolis v. Waterman, 745 A.2d 1000-1011 (Md. 2000) (finding city's condition on appellee's subdivision request did not constitute dedication where condition required recreational area for use by development residents but not general public).
214. Jenad, Inc. v. Vill. of Scarsdale, 218 N.E.2d 673-676 (N.Y. 1966) (finding village planning commission requiring subdivider to pay fee in lieu of dedication of recreational land to be "a reasonable form of village planning for the general community good" rather than unconstitutional tax).
215. For example, in Nollan v. California Coastal Commission, the government demanded that the owners of beachfront property grant an easement of access over the land to the public. 483 U.S. 825-828 (1987). However, the Court found that the imposed condition did not serve the government's asserted interest of making the public feel more comfortable with gaining access to the nearby public parks.
216. Id. at 835-839. Thus, the regulation at hand in Nollan was considered a taking that required just compensation, rather than an exaction.
217. Id. at 839, 841-842. In addition, in Dolan v. City of Tigard, a city government conditioned the granting of a permit to expand building facilities on the property owner dedicating a portion of her property for a public bike path and for a public greenway. 512 U.S. 374, 380 (1994). The Court went beyond Nollan to inquire as to whether the "'essential nexus"' existed between the "'legitimate state interest' and the permit condition."
218. Id. at 386 (quoting Nollan, 483 U.S. at 837). The Court held that a use restriction is a taking if it is not "'reasonably necessary to the effectuation of a substantial government purpose."'
219. Id. at 388 (quoting Nollan, 483 U.S. at 834). Thus, the government "must make some sort of individualized determination that the required dedication [of land] is related both in nature and extent to the impact of the proposed development."
220. Id. at 391.
221. U.S. Const. amend. V ("No person shall be.deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.").
222. Property owners' rights of exclusion are further narrowed in this context by the broad definition of the public use requirement of the Fifth Amendment by the U.S. Supreme Court.
223. Kelo v. City of New London, 545 U.S. 469, 484-485 (2005) (finding general benefits accruing to community from economic growth via private redevelopment plans qualified such plans as permissible "public use" under Takings Clause of Fifth Amendment).
224. Nollan, 483 U.S. at 834 (quoting Agins v. Tiburon, 447 U.S. 255-260 (1980)).
225. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528-538 (2005) (reiterating government must pay just compensation when it regulates property in manner that deprives owner of all economically beneficial use of his land, unless background principles of nuisance and property law independently restrict owner's use of said property).
226. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015-119 (1992) (establishing categorical rule or "total takings" test by which government action is taking if it denies owner all economically valuable use of property).
227. See supra notes 44-47 and accompanying text (describing private necessity doctrine).
228. Henry W. Ballantine, Title by Adverse Possession, 32 Harv. L. Rev. 135-135 (1918).
229. Joseph William Singer, The Reliance Interest in Property, 40 Stan. L. Rev. 611, 665-670 (1988) (positing in part that people regard loss of asset in hand as more significant than forgoing opportunity to realize apparently equivalent gain).
230. Dukeminier et al., 7th ed., supra note 25, at 116-119 (presenting various arguments about motivations underlying adverse possession).
231. See supra notes 104-106 and accompanying text.
232. See supra notes 97-103 and accompanying text.
233. See infra notes 152-155 and accompanying text (arguing acts of trespass should receive more understanding if they serve purposes that are socially valuable).
234. See supra notes 6-9 and accompanying text (providing examples of investigative journalism).
235. Folsom v. Marsh, 9 F. Cas. 342, 348-49 (Story, Circuit Justice, C.C.D. Mass. 1841) (No. 4901) (establishing affirmative defense of fair use as involving inquiry into "the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work").
236. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 571-72 (1994) (holding parody of "Oh, Pretty Woman" may constitute fair use, which would provide complete defense to liability for copyright infringement).
237. The main distinction between exclusion in copyright law (and intellectual property law more generally) on the one hand, and property law on the other, is that the former involves nonphysical goods while the latter concerns physical goods. The nonrival nature of consumption of intellectual property goods has important implications with regard to policy issues-for instance, with regard to the provision and pricing of resources-that are well outside of the scope of this article. For a discussion,
238. Robert Cooter & Thomas Ulen, Law & Economics 124-40 (5th ed. 2008) (providing background on range of policy issues special to intellectual property law).
239. Copyright law specifically mandates the right to exclude others from copying an original work.
240. See Copyright Act of 1976 § 106(1), 17 U.S.C. § 106(1) (2006) (granting owners exclusive rights to reproduce copyrighted works). For a background discussion of trespass law and exclusion, see supra Part I.
241. Generally Epstein, supra note 21, at 742-44 (arguing common law property doctrine provided superior incentives for economic development than does modern constitutional property doctrine).
242. Wendy J. Gordon, Robert G. Bone, Copyright, in 2 Encyclopedia of Law and Economics: Civil Law and Economics § 1610, at 189, 191-96 (Boudewijn Bouckaert & Gerrit De Geest eds., 2000) (summarizing benefits and costs of copyright law).
243. For a summary of the conflict between property rights and other interests,
244. see supra Part II.D.
245. Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600, 1633 (1982) ("Even if money were offered, the owner of a play is unlikely to license a hostile review or a parody.");
246. Harriette K. Dorsen, Satiric Appropriation and the Law of Libel, Trademark, and Copyright: Remedies Without Wrongs, 65 B.U. L. Rev. 923, 925 (1985) (noting "satirists criticize our society by directing their sharp barbs at well-known people, well-known commercial enterprises or trademarks, and popular literary figures or works" in a way that "often causes hurt feelings or embarrassment"); infra notes 129-131 and accompanying text (discussing Supreme Court's treatment of parodies in Campbell v. Acuff- Rose Music, Inc.).
247. See infra notes 161-180 and accompanying text (discussing decisions in Desnick and Food Lion as recent examples of this trend).
248. See Folsom v. Marsh, 9 F. Cas. 342, 348-49 (Story, Circuit Justice, C.C.D. Mass. 1841) (No. 4901) (introducing test for copyright infringement based on "justifiable use"). 125. 17 U.S.C. § 107 (2006).
249. Gordon, supra note 122, at 1632 (describing fair use doctrine in cases where owners "might be reluctant to license," and noting courts have "tended to grant fair use treatment where copyright owners seemed to be using their property right not for economic gain but to control the flow of information").
250. 17 U.S.C. § 107 (presenting fair use limitations on owners' exclusive copyright rights). The predecessor of this test was articulated in Folsom, 9 F. Cas. at 348 (establishing affirmative defense of fair use as inquiry into "the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work").
251. 17 U.S.C. § 107.
252. 510 U.S. 569, 572-73 (1994).
253. Id. at 573.
254. See id. at 592 ("'People ask... for criticism, but they only want praise."'
255. Quoting W. Somerset Maugham, Of Human Bondage 241 (Penguin Books 1992)
256. 1915.
257. See id. (noting "the unlikelihood that creators of imaginative works will license
258. critical reviews or lampoons of their own productions"
259. supra note 122 (describing authors' reluctance to license works for parody or critique purposes).
260. See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[C][1], at 13-224.1 to -225 (2010) (arguing that only through recognition of fair use defense "is society likely to reap the benefit of" parodies of literary works).
261. Robert P. Merges, Are You Making Fun of Me?: Notes on Market Failure and the Parody Defense in Copyright, 21 AIPLA Q.J. 305, 310 (1993) (noting in parody cases, "the refusal to license is based on a noneconomic motive," but "copyright law's preference for dissemination is too strong to give any credence to such motives"). One notable exception, where a parody was not considered fair use, was Walt Disney Productions v. Air Pirates, in which the defendant company copied Disney cartoon characters for adult "counter-culture" comic books and this copying was held to exceed permissible levels. 581 F.2d 751, 758-59 (9th Cir. 1978).
262. Of course, not all actions by investigative journalists produce socially valuable information. Similarly, not all attempts at parody are equally successful. Just as courts evaluate the nature of a parody in a fair use analysis, courts would consider the value of an act of trespass in the test proposed in the next Part.
263. While a journalist might derive some rewards from uncovering socially harmful activities (salary, raises, bonuses, esteem, perhaps even a Pulitzer award), journalists hardly ever capture the full value of the activity to society (total damage prevented, lives saved). Generally, when actors fail to capture the full value of their activities, there is a risk that the activity will be underproduced. See generally Steven S. Shavell, The Social Versus the Private Incentive to Bring Suit in a Costly Legal System, 11 J. Legal Stud. 333 (1982) (discussing difficulty in production of particular activity at socially optimal level because of divergence between "the social and the private benefits" resulting from said activity).
264. As mentioned above, Justice Story essentially created the predecessor to contemporary fair use doctrine in a case involving the copying of private letters that belonged to George Washington.
265. Folsom v. Marsh, 9 F. Cas. 342, 348-49 (Story, Circuit Justice, C.C.D. Mass. 1841) (No. 4901) (establishing affirmative defense of fair use as involving inquiry into "the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work"). The court ultimately concluded that substantial parts of Washington's letters could not be copied without permission.
266. Id. at 349. Scholars now cite this case for having "provided the foundation for one of copyright law's most important safety valves for promoting cumulative creativity and free expression."
267. Robert P. Merges et al., Intellectual Property in the New Technological Age 506 (4th ed. 2006).
268. 17 U.S.C. § 107 (2006).
269. Justice Souter emphasized in Campbell v. Acuff-Rose Music, Inc. that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." 510 U.S. 569, 579 (1994). He noted, however, that "such transformative use is not absolutely necessary for a finding of fair use." Id.
270. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 561 (1985).
271. See, e.g., Castle Rock Entm't, Inc. v. Carol Publ'g Grp. Inc., 150 F.3d 132, 143 (2d Cir. 1998) ("[T]he scope of fair use is somewhat narrower with respect to fictional works... than to factual works.").
272. Harper & Row, 471 U.S. at 553 ("Congress intended the unpublished nature of the work to figure prominently in fair use analysis.").
273. New Era Publ'ns Int'l v. Carol Publ'g Grp., 904 F.2d 152, 157-58 (2d Cir. 1990) (echoing distinction between factual and fictional in distinction between "'primarily informational rather than creative"' (quoting Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 1983))).
274. Campbell, 510 U.S. at 586.
275. Castle Rock, 150 F.3d at 144 (quoting Campbell, 510 U.S. at 586-87).
276. New Era Publ'ns, 904 F.2d at 158 (noting third factor "has both a quantitative and qualitative component").
277. Campbell, 510 U.S. at 588. As the Court pointed out in Campbell, the third inquiry in the fair use analysis necessarily depends on the first factor and must be decided in context.
278. Id. at 586.
279. For example, if two different defendants in separate cases were both found to have taken the "heart" of an underlying work, the third prong could still weigh in favor of either infringement or fair use, depending on whether the work was a biography or a parody, as "the heart is also what most readily conjures up the [work] for parody."
280. Id. at 588.
281. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985).
282. Castle Rock, 150 F.3d at 145.
283. See infra Part IV.A (balancing four fair trespass factors in context of two media trespass cases).
284. See supra notes 140-141
285. and accompanying text (detailing fair use doctrine's first factor assessing "transformative" use of copyrighted material).
286. See supra Part III.A (comparing parody in copyright law to media investigations in trespass law).
287. Compare State v. Shack, 277 A.2d 369, 371-72, 375 (N.J. 1971) ("[T]he
288. ownership of real property does not include the right to bar access to governmental
289. services available to migrant workers and hence there was no trespass...."), with Desnick v. Am. Broad. Cos., Inc., 44 F.3d 1345, 1352 (7th Cir. 1995) (noting "a competitor [who] gained entry to a business firm's premises posing as a customer but in fact hoping to steal the firm's trade secrets" would be subject to liability for trespass).
290. For a more in-depth analysis of heightened expectations of privacy in the residential context, see infra note 158 and accompanying text.
291. See supra Part II.A (describing various property doctrines preserving owner's right of exclusion against long-term trespassers, but only for statutorily determined period after which trespasser could obtain title or license to property in its entirety or particular route or use of part of property, respectively).
292. This common intuition is reflected in privacy law where greater protection is afforded inside the home.
293. See, e.g., United States v. Karo, 468 U.S. 705, 713-15 (1984) (finding electronic surveillance of object in private residence, not open to visual surveillance, was violation of defendant's expectation of privacy, while electronic surveillance of similar object, located just outside private residence, was not);
294. see also Kyllo v. United States, 533 U.S. 27, 31-33 (2001) (noting reasonable expectations to privacy are most heightened in areas including and adjacent to a private home).
295. Parchomovsky & Stein, supra note 14, at 1856-57. 160. Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. See Restatement (Second) of Torts §§ 558-559 (1977). Slander involves the making of defamatory statements by a transitory (nonfixed) representation, usually a verbal representation or a gesture.
296. Id. § 568.
297. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper. Id.;
298. see also N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80, 283 (1964) (establishing "actual malice" standard requiring knowledge of statement's falsity or "reckless disregard" of whether statement was false).
299. 44 F.3d 1345, 1351 (7th Cir. 1995).
300. See supra notes 6-9 and accompanying text (describing details of these discoveries).
301. See supra notes 4-11 and accompanying text (discussing media trespass and how traditional trespass rules rarely allow for this type of behavior, despite societal interest in access).
302. 44 F.3d at 1347.
303. Id. at 1347-49.
304. Id. at 1351.
305. See id. at 1352 (noting that trespass only protects "the inviolability of the person's property").
306. Id. ("The lines are not bright-they are not even inevitable. They are the traces of the old forms of action, which have resulted in a multitude of artificial distinctions in modern law. But that is nothing new.").
307. 194 F.3d 505, 510-11 (4th Cir. 1999).
308. Id. at 516-19.
309. Id. at 518.
310. Desnick, 44 F.3d at 1352-53.
311. Food Lion, 194 F.3d at 516-19.
312. Desnick, 44 F.3d at 1353.
313. Food Lion, 194 F.3d at 519 ("[C]onsent for them to be on its property was nullified when they tortiously breached their duty of loyalty...."). In trespass disputes, the consent to enter can be canceled out "if a wrongful act is done in excess of and in abuse of authorized entry." Miller v. Brooks, 472 S.E.2d 350, 355 (N.C. Ct. App. 1996) (citing Blackwood v. Cates, 254 S.E.2d 7, 9 (N.C. 1979));
314. cf. Ravan v. Greenville Cnty., 434 S.E.2d 296, 306 (S.C. Ct. App. 1993) (noting trespass law protects "peaceable possession" of property).
315. The court awarded a total of two dollars on the duty of loyalty and trespass claims. Food Lion, 194 F.3d at 511, 524.
316. However, if the information obtained in media trespass is incorrect and harmful, this might constitute a potential tort (such as defamation or slander) that can be addressed elsewhere in the legal system.
317. See supra note 160 and accompanying text (discussing possible tort causes of action in media trespass cases).
318. Parchomovsky & Stein provide the following analogy: "An atheist entering a church open to all prayers does not commit trespass. Yet he would commit trespass if he subsequently whispers blasphemy (even when no one else can hear it). What, if any, remedies would be available to the church in such a case is a separate question." Parchomovsky & Stein,
319. supra note 14, at 1855 n.129.
320. Restatement (Second) of Torts § 197 (1965).
321. Benamon v. Soo Line R.R. Co., 689 N.E.2d 366, 370 (Ill. App. Ct. 1997) (quoting Restatement (Second) of Torts § 197 cmt. a).
322. See, e.g., id. (finding trespasser's entry would have been reasonable because "his entry... was for his self-protection and to avoid the threat of bodily harm posed by the gang of boys chasing him," but manner of trespass, hiding near railroad tracks, was unreasonable);
323. West v. Faurbo, 384 N.E.2d 457, 458 (Ill. App. Ct. 1978) (finding no liability for trespass when individual on bicycle swerved onto defendant's land, striking concrete block lining driveway, in attempt to avoid motor vehicle accident);
324. Proctor v. Adams, 113 Mass. 376, 377-78 (1873) (finding no third party liability for trespass where third party entered onto private beach for purpose of salvaging boat cast onto shore by storm to return it to rightful owner before it was carried back out to sea);
325. Ploof v. Putnam, 71 A. 188, 188-90 (Vt. 1908) (finding no liability where plaintiff moored sailboat to defendant's private dock without permission in storm and holding defendant liable for damage to plaintiff's family and boat when defendant compelled plaintiff to unmoor vessel). Emergencies also may induce privileges of entry on behalf of public bodies as well as private individuals.
326. See, e.g., Am. Sheet & Tin Plate Co. v. Pittsburgh & L.E.R. Co., 143 F. 789, 790-91, 793 (3d Cir. 1906) (recognizing that in case of fire emergency, "exigencies of public safety and private necessity" subordinated railroad company's exclusive control over their tracks and justified entry by both private firefighters and agents of American Sheet to same extent as factory owner). 186. 961 A.2d 506, 511 (Del. 2008).
327. But see, e.g., Campbell v. Race, 61 Mass. (7 Cush.) 408, 411 (1851) ("If a traveller in a highway, by unexpected and unforeseen occurrences, such as a sudden flood, heavy drifts of snow, or the falling of a tree, is shut out from the travelled paths, so that he cannot reach his destination, without passing upon adjacent lands, he is certainly under a necessity so to do.").
328. Berns, 961 A.2d at 511-12.
329. 689 N.E.2d at 369-70.
330. 832 N.E.2d 274, 275-76 (Ill. App. Ct. 2005).
331. Id. at 277.
332. Id. at 279.
333. Benamon, 689 N.E.2d at 370 (finding trespasser's entry would have been reasonable because "his entry... was for his self-protection and to avoid the threat of bodily harm posed by the gang of boys chasing him," but that manner of trespass, hiding near railroad tracks, was unreasonable).
334. Compare West v. Faurbo, 384 N.E.2d 457, 459 (Ill. App. Ct. 1978) (finding private necessity from personal emergency where thirteen year-old boy riding his bicycle swerved onto defendant's property to avoid oncoming automobile), with Lange, 832 N.E.2d at 279 (finding no private necessity where taxi driver chased nonpaying passenger onto construction site), Benamon, 689 N.E.2d at 370 (finding no private necessity for boy who hid in trainyard to escape local gang because choice of hiding spot was unreasonably hazardous),
335. and Kavanaugh v. Midwest Club, Inc., 517 N.E.2d 656, 661 (Ill. App. Ct. 1987) (finding no privilege to trespass where driver left roadway due to apparent involuntary epileptic seizure).
336. 563 N.W.2d 154, 156-57, 166 (Wis. 1997) (holding $100,000 in punitive damages not excessive where defendant intentionally trespassed onto neighbor's land after neighbor refused access for transport purposes).
337. The doctrine of fair use has been under attack for at least seventy years. See Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (per curiam) (referring to fair use doctrine as "the most troublesome in the whole law of copyright").
338. Joseph P. Liu, Two-Factor Fair Use?, 31 Colum. J.L. & Arts 571, 574, 577-80 (2008) (proposing to reform current fair use doctrine by limiting analysis to only first and last of four factors, instead of replacing analysis altogether as some scholars have recommended).
339. Michael W. Carroll, Fixing Fair Use, 85 N.C. L. Rev 1087, 1095 (2007);
340. see also 2 Paul Goldstein, Goldstein on Copyright § 12.1, at 12:3 (3d ed. 2005) ("No copyright doctrine is less determinate than fair use."); Darren Hudson Hick, Mystery and Misdirection: Some Problems of Fair Use and Users' Rights, 56 J. Copyright Soc'y U.S.A. 485, 497 (2009) ("[T]he fair use doctrine provides us with very little direction in making legal or ethical decisions.");
341. Gideon Parchomovsky & Kevin A. Goldman, Fair Use Harbors, 93 Va. L. Rev. 1483, 1491 (2007) ("[T]he vagueness of the fair use doctrine undermines its utility, upsets copyright's balance, and leads to the underuse of protected expression.").
342. Liu, supra note 196,
343. at 574 ("Fair use is a classic example of a multi-factor test. The outcomes of multi-factor tests are notoriously difficult to predict. In part, this results from the sheer number of factors that can influence the determination.").
344. Pierre N. Leval, Commentaries, Toward a Fair Use Standard, 103 Harv. L. Rev.
345. 1105, 1106-07 (1990) ("Judges do not share a consensus on the meaning of fair use."). Leval himself admits: Earlier decisions provide little basis for predicting later ones. Reversals and divided courts are commonplace. The opinions reflect widely differing notions of the meaning of fair use. Decisions are not governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns. Justification is sought in notions of fairness, often more responsive to the concerns of private property than to the objectives of copyright. Id. (footnotes omitted).
346. Liu, supra note 196,
347. at 577-78 ("[T]he multi-factor test... requires courts to consider factors that may not be relevant to, or may at times obscure from courts, the ultimate policy concerns underlying fair use more generally.").
348. See id. at 573 (noting "chilling effect" of uncertainty in fair use defense on "ability of individuals to rely upon fair use when incorporating existing works into new ones"); Matthew Sag, God in the Machine: A New Structural Analysis of Copyright's Fair Use Doctrine, 11 Mich. Telecomm. & Tech. L. Rev. 381, 382 (2005) ("The central dilemma for fair use jurisprudence is that without the flexibility of fair use, copyright would become unwieldy and oppressive....").
349. See Parchomovsky and Goldman, supra note 197, at 1510-18 (proposing that implementation of nonexclusive safe harbors, which expressly set forth minimum amounts of copying as fair, would work to eliminate uncertainty and unpredictability of current fair use doctrine in copyright law); see also Hick, supra note 197, at 497 ("[S]ince the doctrine, as written, is open to such wide interpretation, the outcome of any legal battle that turns on the doctrine will almost always be in doubt.").
350. Liu, supra note 196, at 571; see also, Carroll, supra note 197, at 1093 ("Concerns about the problem of fair use uncertainty have intensified recently....").
351. See Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Pa. L. Rev. 549, 554 (2008) ("[M]uch of our conventional wisdom
352. about [U.S.] fair use case law, deduced as it has been from the leading cases, is wrong.");
353. see also Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537, 2541 (2009) ("[F]air use law is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases tend to fall into common patterns....").
354. Samuelson, supra note 204, at 2542. 206. Specifically, the argument is that the unpredictability of the doctrine typically induces risk-averse users of copyrighted content to obtain potentially superfluous licenses from content owners in order to minimize the risks associated with statutory damages in copyright law.
355. See James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 884 (2007) ("Combine... doctrinal gray areas and severe consequences with the risk aversion that pervades key copyright industries, and the result is a practice of securing copyright licenses even when none is needed. Better safe than sued."). On the distributive consequences of new technologies,
356. see generally Molly Shaffer Van Houweling, Distributive Values in Copyright, 83 Tex. L. Rev. 1535 (2005). Van Houweling states: [I]nexpensive technology for creativity and distribution empowers some creators who do not stand to benefit monetarily from copyright because their work does not have commercial appeal or because they do not want to exploit it commercially. The primary mechanism by which copyright aspires to encourage creativity (protecting creators from copiers who would drive down the market price for copies of their work) does not benefit these nonmarketplace creators. They are not monetarily benefited by copyright, but they are now burdened because technology gives them power to practice iterative creativity on a scale that is likely to come to the attention of copyright holders.
357. Id. at 1564.
358. Although landownership suggests a certain level of wealth, the incidental nature of many trespass intrusions brings about random distribution with regard to the wealth of the opposing parties in trespass disputes. Moreover, some deliberate acts of land intrusion, such as media trespass, pit wealthy plaintiffs (news corporations) against well-endowed defendants (for-profit hospitals, fast food chains, supermarket corporations, and similar entities). See supra Part IV.A (discussing Desnick and Food Lion).
359. See generally Ben Depoorter, Technology and Uncertainty: The Shaping Effect on Copyright Law, 157 U. Pa. L. Rev. 1831 (2009) (discussing unique impact of technology as source of uncertainty in copyright law).
360. See id. at 1846-48 (pointing to "the difficulty of perfectly predicting ex ante how the courts will apply the law to new circumstances ex post" in light of "technological advances that are often... erratic and... difficult to predict").
361. See, e.g., Marc Jonathan Blitz, Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World That Trades Image and Identity, 82 Tex. L. Rev. 1349, 1363 (2004) (arguing scope of Fourth Amendment protection "needs rethinking if constitutional privacy protections are to work well in twenty-first century conditions");
362. Raymond Shih Ray Ku, The Founder's Privacy: The Fourth Amendment and the Power of Technological Surveillance, 86 Minn. L. Rev. 1325, 1373-78 (2002) (arguing for application of Fourth Amendment constraints to searches conducted with new surveillance technologies unless new technology is specifically authorized by statute containing constitutionally adequate safeguards).
363. Please note that this is a comparative remark. The rate of innovation and the corresponding amount of new legal issues presented by new technologies is very likely higher in the context of copyright technologies. This is because innovations in the copyright arena frequently involve digital technologies (such as peer-to-peer platforms) that do not impose the larger, fixed costs of the physical production of machines or devices that are involved with physical trespassory acts.
364. Louis Kaplow, Rules Versus Standards: An Economics Analysis, 42 Duke L.J. 557,
365. 571-77 (1992) (comparing respective costs and benefits of open standards and bright-line rules);
366. see also Carroll, supra note 197, at 1100 ("It is well established that standards trade off greater ex ante certainty for greater ex post context sensitivity....").
367. See Kaplow, supra note 212, at 561-62 ("One can think of the choice between rules and standards as involving the extent to which a given aspect of a legal command should be resolved in advance....").
368. See supra Part II;
369. see also Dukeminier et al., 6th ed., supra note 55, at 195 (noting balancing of public policies with restriction of property rights).
370. See supra Part III.
371. See supra Part IV.A.
372. Supra notes 1-3 and accompanying text.