Free Culture | Page 3

in our future. A free
culture has been our past, but it will only be our future if we change the path we are on
right now.
Like Stallman's arguments for free software, an argument for free culture stumbles on a
confusion that is hard to avoid, and even harder to understand. A free culture is not a
culture without property; it is not a culture in which artists don't get paid. A culture
without property, or in which creators can't get paid, is anarchy, not freedom. Anarchy is
not what I advance here.
Instead, the free culture that I defend in this book is a balance between anarchy and
control. A free culture, like a free market, is filled with property. It is filled with rules of
property and contract that get enforced by the state. But just as a free market is perverted
if its property becomes feudal, so too can a free culture be queered by extremism in the
property rights that define it. That is what I fear about our culture today. It is against that
extremism that this book is written.


FREE CULTURE
INTRODUCTION

On December 17, 1903, on a windy North Carolina beach for just shy of one hundred
seconds, the Wright brothers demonstrated that a heavier-than-air, self-propelled vehicle
could fly. The moment was electric and its importance widely understood. Almost
immediately, there was an explosion of interest in this newfound technology of manned
flight, and a gaggle of innovators began to build upon it.
At the time the Wright brothers invented the airplane, American law held that a property
owner presumptively owned not just the surface of his land, but all the land below, down
to the center of the earth, and all the space above, to "an indefinite extent, upwards."
1 For
many years, scholars had puzzled about how best to interpret the idea that rights in land
ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese

for their willful and regular trespass?
Then came airplanes, and for the first time, this principle of American law--deep within
the foundations of our tradition, and acknowledged by the most important legal thinkers
of our past--mattered. If my land reaches to the heavens, what happens when United flies
over my field? Do I have the right to banish it from my property? Am I allowed to enter
into an exclusive license with Delta Airlines? Could we set up an auction to decide how
much these rights are worth?
In 1945, these questions became a federal case. When North Carolina farmers Thomas
Lee and Tinie Causby started losing chickens because of low-flying military aircraft (the
terrified chickens apparently flew into the barn walls and died), the Causbys filed a
lawsuit saying that the government was trespassing on their land. The airplanes, of course,
never touched the surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had
said, their land reached to "an indefinite extent, upwards," then the government was
trespassing on their property, and the Causbys wanted it to stop.
The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways
public, but if one's property really extended to the heavens, then Congress's declaration
could well have been an unconstitutional "taking" of property without compensation. The
Court acknowledged that "it is ancient doctrine that common law ownership of the land
extended to the periphery of the universe." But Justice Douglas had no patience for
ancient doctrine. In a single paragraph, hundreds of years of property law were erased. As
he wrote for the Court,
[The] doctrine has no place in the modern world. The air is a public highway, as
Congress has declared. Were that not true, every transcontinental flight would subject the
operator to countless trespass suits. Common sense revolts at the idea. To recognize such
private claims to the airspace would clog these highways, seriously interfere with their
control and development in the public interest, and transfer into private ownership that to
which only the public has a just claim.
2
"Common sense revolts at the idea."
This is how the law usually works. Not often this abruptly or impatiently, but eventually,
this is how it works. It was Douglas's style not to dither. Other justices would have
blathered on for pages to reach the conclusion that Douglas holds in a single line:
"Common sense revolts at the idea." But whether it takes pages or a few words, it is the
special genius of a common law system, as ours is, that the law adjusts to the
technologies of the time. And as it adjusts, it changes. Ideas that were as solid as rock in
one age crumble in another.
Or at least, this is how things happen when there's