What’s Mines is Mines

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What’s Mine Is Mine.
Author: Elizabeth Kolbert
Date: Mar. 15, 2021
From: The New Yorker(Vol. 97, Issue 4)
Publisher: Conde Nast Publications, Inc.
Document Type: Article
Length: 2,783 words
Full Text:
Byline: Elizabeth Kolbert
What’s Mine Is Mine
Are we making up our notions of property rights on the fly?
On July 26, 2015, William Merideth’s daughter was sunbathing on the deck of their house, in Hillview, Kentucky, when a drone flew
over the back yard. The girl rushed inside to tell Merideth, who rushed out. The drone had whizzed on, but it soon returned. It was,
Merideth would later say, “hovering” above him when he decided to plug it with his shotgun.
The drone, which cost its owner some fifteen hundred dollars, crashed into a nearby field. Merideth argued that he was justified in
firing at it because it was trespassing on his property. “I didn’t shoot across the road,” he told the local Fox affiliate, WDRB. “I didn’t
shoot across my neighbors’ fences. I shot directly into the air.” The Hillview police took a different view. They arrested Merideth and
charged him with criminal mischief. He ended up spending a night in jail. Upon his release, he had T-shirts made up showing a drone
in a set of crosshairs. “We the People have had enough,” the shirts said.
According to the maxim Cuius est solum, eius est usque ad coelum et ad inferos, whoever owns the ground owns up to Heaven and
down to the center of the earth. William Blackstone cited this formula in his “Commentaries on the Laws of England,” which was
published in four volumes starting in 1765. For the next century, most legal texts repeated some version of it. “The law says the land
is his even to the sky, and therefore he has a right to it,” a Vermont judge wrote in 1888, in a decision involving a roof that edged over
a property line.
With the invention of the telegraph and the telephone, courts extended the principle to transmission wires. Later, the same was done
for elevated train tracks. In 1897, the Illinois Supreme Court ruled that the Metropolitan West Side Elevated Railroad Company had
acted illegally in extending a track fourteen feet above a Chicago alleyway owned by a man named Warren Springer. Springer was
awarded sixty-one thousand dollars, almost two million dollars in today’s money.
When airplanes drifted into the picture, applying Cuius est solum started to get tricky. In a single trip, a plane might pass over
hundreds, even thousands of properties. Was this trespassing? If so, what was the remedy? On the ground, a landowner had the
right to eject a trespasser, provided the force exerted was “reasonable.” But as Stuart Banner, a professor at the U.C.L.A. School of
Law, observes in “Who Owns the Sky?” (2008), anyone who tried to scare off an aircraft by, say, firing a warning shot “would likely be
committing a felony.”
The issue was finally settled in 1946, with the help of some poultry. Thomas Causby was a chicken farmer who lived just east of the
Greensboro-High Point Airfield, in North Carolina. During the Second World War, the United States Army leased the airfield,
extended the runway, and erected a control tower. With that, it was “one plane right after another,” Causby’s wife, Tinie, lamented.
The noise of the aircraft agitated the hens; frantic, they would throw themselves against the walls of their coop and, in Causby’s
words, “burst themselves open and die.” Causby filed suit, claiming that the War Department had deprived him of his livelihood. The
case reached the U.S. Supreme Court, which, in a manner of speaking, split the air column. A landowner, the Court ruled, did not
own up to Heaven-only “the immediate reaches of the enveloping atmosphere.”
So what about drones? Is a drone two hundred feet above someone’s yard hovering in the “immediate reaches”? How about a
hundred feet up? Or fifty? What about ten?
Everyone, from toddlerhood onward, knows-or thinks he knows-what’s his. But, according to Michael Heller, a professor at Columbia
Law School, and James Salzman, a professor at the U.C.L.A. School of Law, ownership is never straightforward. It “is a social
engineering choice, a conclusion we come to, not a fact we find,” they observe.
Heller and Salzman open their new book, “Mine! How the Hidden Rules of Ownership Control Our Lives” (Doubleday), with the
brouhaha that became known as “reclinegate.” In January, 2020, on the day that the Trump Administration declared COVID-19 a
“public health emergency,” a woman named Wendi Williams travelled from New Orleans to Charlotte on American Airlines. She was
sitting in the next-to-last row, and some minutes into the flight she pressed the metal button on her armrest and leaned back. The
man behind her responded by pounding on her seat. Williams filmed him with her phone and tweeted the video, which went viral.
Everybody, it seemed, had an opinion on the matter.
“The proper thing to do is, if you’re going to recline into somebody, you ask if it’s O.K. first,” Ed Bastian, the head of Delta Air Lines,
said.
“The only time it’s ever O.K. to punch someone’s seat is if the seat punches you first,” Ellen DeGeneres declared.
According to Heller and Salzman, neither party was exactly right or exactly wrong. When Williams bought her ticket, she’d been led to
believe that she was buying access to her seat and to the triangle of space behind it. The man in the last row believed that the
triangle properly belonged to him. The airline had left the “rules of ownership” vague so that it could, in effect, sell the same wedge of
space twice. The result was an aerial imbroglio.
In “Mine!,” Heller and Salzman examine a wide array of ways that people lay claim to things, both actual (as in treasure) and more
abstract (as in ideas). Since ownership is constructed, it’s always up for grabs. Consider perhaps the most basic argument for
possession: it’s mine because it’s me. Heller and Salzman recount the story of Levy Rosenbaum, a Brooklyn man who worked to
match desperately ill patients with kidney donors. Had the donors given away their organs, Rosenbaum would probably have been
considered a hero. As it was, the donors were paid. Under U.S. law, a person is forbidden to sell a kidney, even if it’s her own, and
Rosenbaum was convicted of organ trafficking. At his sentencing hearing, in Trenton, several people said that he had saved their
lives. Nevertheless, he ended up spending two and a half years in prison.
Heller and Salzman acknowledge that putting a price on organs has its perils. But, they argue, exploitation is a fact of life: “Poor
people already work extra shifts and take dangerous jobs that risk their health.” Why “deny adults the ability to pay off a mortgage by
selling a kidney instead of working in a convenience store?”
Meanwhile, the law on selling body parts is all over the map. People get paid for parting with their blood plasma and their sperm. In
Montana, it’s O.K. to sell your bone-marrow cells, though in neighboring Wyoming it’s not. In Illinois, a woman can rent out her uterus
to gestate someone else’s baby, but in Michigan this is prohibited. Egg donors can make tens of thousands of dollars, through
payments that are labelled “compensation.” In Canada and much of Europe, payment for eggs is forbidden, which is why, according
to “Mine!,” the United States has become a destination for “fertility tourists.” If it seems as if people are making up the rules of
anatomical ownership as they go, Heller and Salzman argue, that’s because they are.
Then, there’s the claim that it’s mine because I got there first. “First,” Heller and Salzman point out, is itself a judgment call. There are
profound examples of this-the wholesale appropriation of Indian lands so that white settlers could claim priority-and also many more
trivial ones. Services with names like Skip the Line and Linestanding.com hire people (sometimes the homeless) to queue up
(sometimes for days) for seats in congressional hearing rooms and in the U.S. Supreme Court. When the hired stand-in gets to the
door, a well-heeled lawyer or lobbyist takes his spot. Is it fair to say you are “first” if you’ve paid someone to be first in line for you?
“We never used to ask these questions,” Heller and Salzman write. “But today we must.”
In recent decades, the Web has created a whole new class of possessions to wrangle over. Take, for example, the e-book. A person
who buys a digital book may imagine she’s bought the electronic equivalent of a hardcover or a paperback. The e-book version of
“Neuromancer” is, after all, pretty much word for word the same as the print version. Legally speaking, though, the two volumes are
very different. Once you’ve bought a paperback, you can resell it, or give it to a friend, or cut it up and make a collage out of it and sell
that. If you buy the e-book, you can’t resell it or lend it or rearrange it-at least not without violating the terms of service. Sometimes
you can’t even read it yourself. In 2009, Amazon removed copies of “1984” and “Animal Farm” from purchasers’ Kindles. (The
company said that the books had been downloaded from an intermediary that did not own the rights.) Similarly, Apple has pulled
movies from customers’ accounts as a result of disputes with the movies’ copyright holders.
As more and more objects are connected to the Web, the odds of such take-backs grow. Heller and Salzman cite the case of Revolv,
a company that offered a “smart-home” hub that could be used to program a household’s lights, alarms, and motion detectors. In
2014, Google bought Revolv; two years later, it closed the company and disabled the hubs. Though Google didn’t actually go into
people’s homes and take the devices, it might as well have. As one irate owner complained, the hubs had become about as useful as
“a container of hummus.” The move was legal owing to the licensing agreement that Revolv owners had acquiesced to, doubtless
without perusing.
“iTunes, Kindle and Revolv licenses all work more or less the same way,” Heller and Salzman write. “The limits of your ownership are
described in excruciating legal detail on a website no one ever reads and few could understand (including us, your authors).” And
tech firms like Google and Amazon want it that way: “The companies we interact with online are masters of ownership engineering.”
By now, so much online territory has been seized by our e-overlords that the rest of us have been reduced to e-peonage. So, at least,
runs the argument of “Owned: Property, Privacy, and the New Digital Serfdom” (2017), by Joshua A. T. Fairfield.
Fairfield, a professor at the Washington and Lee University School of Law, opens his book with the tale of We-Vibe, a line of sex toys
sold by the company Standard Innovation. We-Vibe vibrators work with an app that allows customers (or their partners) to manage
the devices via their cell phones. In 2016, a group of We-Vibe customers filed a class-action lawsuit, alleging that Standard
Innovation had used the app to extract personal data. These data-of a remarkably intimate nature-revealed when the vibrators were
operating, at what intensity, and even at what temperature. Fairfield refers to the company’s conduct as the online version of droit du
seigneur. “The digital and smart devices that surround us are legion, but we do not truly own or control them,” he writes. (Standard
Innovation eventually settled for $3.75 million, without admitting wrongdoing.)
“Owned” is filled with tales of similarly devious technologies, including browsers that trick people into overpaying for plane tickets and
computers that communicate surreptitiously with appliances. In a peculiarly creepy instance, a pro-life group used a technology called
mobile geofencing to follow women into abortion clinics and send messages to their cell phones. Fairfield’s own phone was, he
reports, hijacked by a game that his daughters downloaded. The game commandeered the phone’s Internet connection in order to
distribute itself to other customers.
In the meantime, of course, all our devices-phones, laptops, tablets, even, in some cases, sex toys and water meters-leak information
about our movements and our purchases. “The ‘owner’ is a source of data to be harvested,” Fairfield observes. He tries to shield his
own data, with the paradoxical result that he’s become that much easier to follow: “I am now more identifiable, since I’m now ‘that guy
who always sets his do-not-track flag’ in addition to all the other browser characteristics I transmit to each website.”
Like Heller and Salzman, Fairfield is troubled by the agreements we all click through without reading. Often, these agreements state,
in dense legalese, that consumers don’t own the contents of their devices. “It is as if the dealer sold you a car, but retained ownership
of the motor,” Fairfield writes. As with e-books and digital movies, purchasers are only licensing the software that comes with their
iPhones; they can’t modify it, or-in theory, at least-do anything else with it that Apple doesn’t approve of. Meanwhile, software-makers
often have plans for people’s devices that diverge from those of their (ostensible) owners. Extending the vehicular metaphor, Fairfield
writes, “It’s as if your car had a built-in backseat driver, one that constantly pulled you off the road to go to McDonald’s.” Consumers
can decline to consent to the licensing agreements they’re presented with, but most devices won’t function without the installed
software. Besides, as Fairfield points out, many agreements don’t even really require agreement:
I’m sure you have seen websites that say, “By continuing to this website, you agree to tracking by cookies.” That is not an argument
that usually works. Let’s try it: Dear reader, by reading this book, you have already agreed to give me all your money. Nope. Didn’t
work. But it does online.
Why is it that Apple can retain control over the software in your phone but G.M. can’t maintain control over the engine in your car?
Fairfield argues that it’s because the legal system has had trouble deciding what sort of rules to apply to digital goods. He cites two
cases decided by the U.S. Court of Appeals for the Ninth Circuit. In the first, UMG Recordings, Inc. v. Augusto, the judges ruled that
used music CDs could be resold on eBay. In the second, Vernor v. Autodesk, Inc., decided on the very same day, the very same
panel of judges ruled that used software CDs could not be resold on eBay.
In another case, MAI Systems Corp. v. Peak Computer, Inc., also decided by the Ninth Circuit, the court ruled that a computer-repair
company that copied custom software from a computer’s storage disk into its active memory was violating copyright. There’s no way
to fix a computer without copying the software into the active memory, so the ruling could have put every independent computerrepair shop in the country out of business. To prevent this, Congress had to get involved. It passed a law overruling the ruling, in part.
In a new book, “Runaway Technology” (Cambridge), Fairfield argues that the problem isn’t an inherent one. Case law could keep up
with Moore’s law; legislators and the courts just need to learn to “think different.” He counsels, “To the extent that we think of law as
rules, we must reconceive it as a way of guiding change in rules.”
Fairfield depicts Big Tech-and, to be fair, also Little Tech-as unrelievedly greedy and manipulative. Clearly, he intends his books as a
goad. Digital serfs, unite! You have nothing to lose but your blockchains! In the not too distant future, he warns, Google could decide
to shut off your self-driving car or your pacemaker. “If we do not take back our ownership rights,” he says, we will be reduced to using
“our smart devices, our homes, our cars, and even our own software-enabled medical implants purely at the whim of others.”
Fairfield’s argument is persuasive; whether it is practical is another matter. As he observes, Google, Facebook, and other “masters of
ownership engineering” are working hard-and paying armies of lobbyists-to preserve their digital kingdoms.
“Framed as it is in terms of Silicon Valley propaganda, technology policy in the United States is ineffective by design,” he writes. And
while the legal system may be capable of coming up with new ways to deal with new technologies, historically it has lagged and
stumbled. Cuius est solum remained the standard for nearly two hundred years, even as hot-air balloons and then dirigibles and
finally airplanes rendered it untenable. Four decades after Kitty Hawk, the law still hadn’t caught up. As Heller and Salzman point out,
this is why it’s so important to craft the “rules of ownership” wisely: “Once created, ownership is hard to roll back.”
Copyright: COPYRIGHT 2021 All rights reserved. Reproduced by permission of The Condé Nast Publications, Inc.
http://www.newyorker.com/
Source Citation (MLA 9th Edition)
Kolbert, Elizabeth. “What’s Mine Is Mine.” The New Yorker, vol. 97, no. 4, 15 Mar. 2021, p. 78. Gale Literature Resource Center,
link.gale.com/apps/doc/A655883938/LitRC?u=lln_adcc&sid=bookmark-LitRC&xid=81f959f6. Accessed 18 May 2022.
Gale Document Number: GALE|A655883938