What is miraculous in the corporeal field is commonplace in the incorporeal. Ideas are infinite and the tendency of the law has been to deny that rights of ownership can apply to these. As was said by Thomas Jefferson, one of the framers of the United States' constitution:
If nature has made any one thing less susceptible than all others of exclusive property, it is that action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. ... He who receives an idea from me, receives instructions himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should be spread from one to another over the globe, for the moral and mutual instructions of man, and improvement of his condition, seems to have been peculiarly and designed by nature ...
Many of the issues involved and the framework of the legal response predate the computer. In the 18th and 19th centuries, the industrial revolution transformed the physical world. Control of natural resources such as coal or iron ore, coupled with that of the communications infrastructure required for their transportation, became the key to wealth and power and resulted in a massive increase in their exploitation. The plans of those who wished to build and operate railroads, however, frequently conflicted with the wishes of those who owned the land over or adjacent to which the metal monsters were intended to travel. These disputes formed the basis for many of the landmark parliamentary battles of the Railway Age. In the agricultural field, the enclosure of land marked a move from common ownership to private or individual ownership. Anyone familiar with the movies will recognise a similar phenomenon in the Wild West where the arrival of the wagon trains brought waves of settlers intent on claiming ownership of land hitherto not recognised as being owned by anyone (except the Indians who obviously did not count).
The Wild West analogy furnishes an appropriate theme for the present work. Its basic thesis asserts that we are living on a new, electronic, frontier. The question to be addressed concerns the manner in which the law should be applied to the new forms of behaviour resulting from the invention and application of the computer. One of the more notorious phenomenon's of the computer age has been that of computer hacking. The nature and legal implications of this will be discussed in detail in chapter three. In terms of the present analogy the computer hacker may be seen as a modern equivalent of the gunslinger. Here discussion is only partly concerned with the question whether conduct is prohibited by the law. Of greater significance are questions as to the adequacy of law enforcement and the obtaining and presentation before a court of the evidence necessary to secure a conviction. In other areas, direct marketeers and the controllers of data bases may be equated with the railroad barons and the mining undertakings whose insatiable thirst for resources threatened the interests of other landowners located downstream from their activities. The system of riparian rights in respect of access to and use of water is adequate for regulating the activities of private parties, less so when water becomes an industrial resource. Here the issue is the more significant one whether existing legal models are suitable for the new age. When a car or a domestic appliance breaks down, its owner is faced with the choice whether to seek to have it repaired or to replace it with a new model. A similar dilemma faces today's law makers. In a number of significant areas, the introduction of information technology is exposing limitations in existing legal provisions. The question whether the response should involve repair or replacement is of critical importance.
It is difficult to identify a single area of law or of life which is not at least potentially affected by information technology. This work will consider four key topics; the impact of computerised record keeping practices upon individual privacy, the extent to which computer related conduct might be incur sanctions under the criminal law, the application of the copyright system to computer software and, finally, the nature and extent of the liabilities which may be incurred in the event that the improper operation of software results in some form of injury or damage.