June 22, 2003  ·  Lessig

Phil Greenspun has a funny (as in sad) story about the market rising because the public domain is being transferred to corporations. The hook is (of course) the Sonny Bono Act (Free Culture!), but then Phil tells this bizarre story about how Disney World has apparently succeeded in getting the airspace above Disney World assigned to it. As Phil writes,

>Ever since the dawn of aviation it has been held that airspace belongs to the
>public and is to be regulated for the benefit of all by the FAA.� This is what, for
>example, prevents the owner of a farm in Missouri from demanding that Delta
>Airlines pay him a tax every time they fly over his farm.�

But there is a relevant pre-history here that is useful to remember. Before “the dawn of aviation,” in fact, the law was that the owner of a bit of land owned not just the land, but all the land to center of the earth, and, as Blackstone put it, “to an indefinite extent, upwards.” (See pg 18 here).

This, of course, created a problem once the history of aviation was born. For obviously, if I own all the space above my land, then companies like United are just napsterizing my property as they fly above my land.

The Supreme Court finally resolved this matter in 1946. The Causby’s, North Carolina farmers, complained because military aircraft were causing their chickens to fly in panic to their death as they smashed into the walls. The Causby’s claimed “trespass” and demanded the military stop flying over their land.

The Supreme Court rejected the argument that airplanes trespass. As Justice Douglas 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.

“Common sense revolts at the idea.”

Where’s a good “common sense revolt[]” when you need it?