Lessig+-+Free+Culture+-+Introduction

Lessig+-+Free+Culture+-+Introduction -...

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FREE CULTURE HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL LAWRENCE LESSIG HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY
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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 elec- tric 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 sur- face 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 Amer- ican law—deep within the foundations of our tradition, and acknowl- edged 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 al- 1
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lowed 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 Car- olina farmers Thomas Lee and Tinie Causby started losing chickens because of low-flying military aircraft (the terrified chickens appar- ently flew into the barn walls and died), the Causbys filed a lawsuit say- ing 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 indefi- nite 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 unconsti- tutional “taking” of property without compensation. The Court ac- knowledged 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 count- less trespass suits. Common sense revolts at the idea.To recognize
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