Yeah maybe and perhaps one day there will be a case and a lawyer who will argue that same point.

Personally, until there are specific laws against flying over private property with specifics regarding altitudes I feel comfortable about flying drones above private property both professionally and recreationally. There have been some attempts by private entities and local governments to restrict public airspace for drones and so far I know really of NYC successfully being able to do so. Public airspace is public airspace and the FAA has been treating drones as aircrafts that need to follow their rules like all the other aircrafts using the airspace.