What’s interesting about the story, from a legal perspective, is that if the trespassing was tolerated for a decent amount of time, you trespassers would have had a LEGAL RIGHT to continue doing what you were doing, and even legal recourse against landowners who tried to stop you from crossing their property. This is called an “easement” and it has a long tradition in physical property law. So there is a history of “use it or lose it” for property rights, and when tradition gives an expectation of access, the law actually can shift to protect people who have that expectation, even if they are not the owners of the property.

That’s not to say, of course, that a local community would have relied on law to solve its problems, but it is interesting that the law’s stance on this is not as absolutist as many might assume.

I’d also point out that fair use defense in copyright law is not only for private use. So if you are using the term “fair use” in a legal way, there are actually quite a few fair use arguments for legally protecting things that are of public value, (parody, commentary, education etc), regardless of whether they are kept to a few users or spread widely, used for profit or noncommercial.

If you mean simply that you don’t think it’s fair, the basis for “fairness” here isn’t clear to me (forgive me, I am new to your blog). Personally, I’m not a big believer in artists rights to control the use of works they make public, once it enters the public sphere, especially since all art builds on other art, and making judges decide what level of that is acceptable seems iffy to me (which is what copyright infringement cases do). If the issue is the right to make money, I’m not convinced that fan fiction hurts the author’s ability to make money off their work. But that’s another series of discussions!