Mine! E-Book

Michael Heller

• Herausgeber: Atlantic Books
• Kategorie: Fachliteratur
• Sprache: Englisch

Veröffentlichungsjahr: 2021

Beschreibung

'A delicious book.' Jared Diamond Who controls the space around an aeroplane seat: you or the person behind you trying to work on their laptop? Who owns your favourite football player? And why do Facebook and Google want your private data? In Mine! Michael Heller and James Salzman reveal the hidden economic and social rules that guide everyday life, demonstrating that much of what we assume about ownership is wrong. Whether a lost wallet, a playground swing or a London flat, Mine! explores what ownership means and why it governs everything we do.

Leseprobe

Mine!

Also by Michael Heller

The Gridlock Economy: How Too Much OwnershipWrecks Markets, Stops Innovation, and Costs Lives

Also by James Salzman

Drinking Water: A History

Mine!

How the Hidden Rules ofOwnership Control Our Lives

MICHAEL HELLER&JAMES SALZMAN

First published in the United States in 2021 by Doubleday, a division of Penguin Random House LLC, New York.

Published in hardback and trade paperback in Great Britain in 2021 by Atlantic Books, an imprint of Atlantic Books Ltd.

Copyright © Michael Heller and James Salzman, 2021

The moral right of Michael Heller and James Salzman to be identified as the authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act of 1988.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of both the copyright owner and the above publisher of this book.

Every effort has been made to trace or contact all copyright holders. The publishers will be pleased to make good any omissions or rectify any mistakes brought to their attention at the earliest opportunity.

10 9 8 7 6 5 4 3 2 1

A CIP catalogue record for this book is available from the British Library.

Hardback ISBN: 978 1 78649 778 9

Trade paperback ISBN: 978 1 78649 779 6

E-book ISBN: 978 1 78649 780 2

Printed in Great Britain

Atlantic Books

An imprint of Atlantic Books Ltd

Ormond House

26–27 Boswell Street

London

WC1N 3JZ

www.atlantic-books.co.uk

What’s Mine Is Yours

To Debora, Ellie, and Jonah—MH

To Heather, Ben, Eleanor, Elizabeth,Jamie, and Kate—JS

CONTENTS

Introduction: Who Gets What and Why

1 First Come, Last Served

2 Possession Is One-Tenth of the Law

3 I Reap What You Sow

4 My Home Is Not My Castle

5 Our Bodies, Not Our Selves

6 The Meek Shall Inherit Very Little

7 The Future of Ownership—and the World

Epilogue: The Toddler’s Rules of Ownership

Thanks

Notes

Index

Mine!

Introduction

WHO GETS WHAT AND WHY

Mine! This primal cry is one of the first words children learn. Toddlers in sandboxes shout it out during epic struggles over plastic buckets. For adults, the idea of ownership seems natural and beyond contest. You know what it means to own stuff, whether you’re buying a new home or claiming the last slice of pie. Mine couldn’t be simpler.

But a lot of what you know about ownership is wrong.

Once you understand how the rules actually work, you will see the drama taking place beneath our workaday concept of ownership. Governments, businesses, and ordinary people are constantly changing the rules on who gets what and why. Each of these choices creates winners and losers. And this has always been so. At its core, human society exists to help us deal with competing claims to scarce resources—whether food, water, gold, or sexual partners—so that we don’t kill each other too often.

Even the Garden of Eden story turns on ownership. God instructs Adam and Eve that the Tree of Knowledge and its fruit belong to God alone. It’s mine. Don’t touch. But the first people pluck the apple, they are evicted from the Garden, and human history begins. Since then, ownership has been up for grabs.

The Knee Defender

James Beach is a large guy, over six feet tall. On a United Airlines flight from Newark to Denver, after takeoff the businessman lowered his tray table from the middle seat of row twelve and attached his Knee Defender. The Knee Defender is a simple plastic bracket available for $21.95 that clamps onto the metal tray table support and locks the seat in front. Its website claims the Knee Defender will “stop reclining seats on airplanes so your knees won’t have to.” Assured of his workspace, Beach opened his laptop.

The Knee Defender claims are real. When the passenger sitting in front of Beach tried to “sit back, relax, and enjoy the flight,” her seat didn’t budge. She complained to the flight attendant, who asked Beach to remove the clamp, but Beach was slow to comply. Outraged, the passenger slammed her seat back, popping out the Knee Defender and jolting Beach’s laptop. He quickly jammed her seat back up and reattached the clamp. That’s when she turned around and threw her drink at Beach. We’ll never know how this might have escalated because the pilot took charge and changed course to Chicago for an emergency landing. Both passengers were removed from the plane, which then continued on to Denver, an hour and thirty-eight minutes late.

The same conflict keeps erupting—most recently with video. On an American Airlines flight from New Orleans to North Carolina, Wendi Williams reclined her seat. The man behind was in the last row, so he could not recline. Instead, he pushed the back of Williams’s seat repeatedly, like an irritating metronome. Her video of this high-altitude fracas quickly went viral.

With each incident, the blogosphere boomed back and forth with hundreds of self-righteous accusations, all equally certain of the correct rule. Talk show host Ellen DeGeneres defended the recliners: “The only time it’s ever okay to punch someone’s seat is if the seat punches you first.” Delta Air Lines chief executive Ed Bastian took an opposing view: “The proper thing to do is, if you’re going to recline into somebody, you ask if it’s OK first.” Williams didn’t ask.

So who’s right?

Williams’s view is simple: her armrest button reclines her seat. The wedge of reclining space therefore belongs to the front seat. This claim of attachment—it’s mine because it’s attached to something that’s mine—is one of the oldest justifications for ownership, dating back thousands of years. Beach was relying on a different attachment story, a maxim coined in medieval England that “whoever owns the soil, owns up to Heaven and down to Hell.” He claimed dominion over the vertical column of space attached to his seat—straight up to the luggage compartment and down to the crumb-coated carpeting. When the seat in front intrudes into that column, it’s a trespass, a jarring affront to good order.

Attachment is the most pervasive ownership claim you’ve never heard of. It’s why landowners in Texas can extract underground oil and gas, why farmers pumping groundwater are causing California’s Central Valley to sink, and why Alaska can limit overfishing in the Bering Sea. Attachment translates two-dimensional boarding passes, land deeds, and territorial maps into three-dimensional control of scarce resources.

But attachment is not the only ownership claim in play for Beach and Williams. At the beginning of every flight, all seats are “in their full, upright, and locked position,” as the flight attendant commands. At that moment, Beach had exclusive use of the space in front of him. He had first dibs on the wedge. First come, first served is another primitive and visceral basis for claiming mine. Kids assert it on the playground; adults invoke it up in the air. And recall that Beach actually took physical possession of the wedge when he locked the Knee Defender in place and opened his laptop screen. As we hear so often, Possession is nine-tenths of the law.

Air travel brings into sharp focus this clash of conflicting stories about ownership—attachment, first-in-time, and possession.

When we ask audiences about the Knee Defender conflict, most respond with versions of “It’s obvious,” “There’s nothing to debate here.” But when we press further and ask for a show of hands, generally people are split between Williams and Beach—and both groups look at each other with incredulity. In a 2020 USA Today poll with three thousand respondents, about half replied, “If it can recline, I’m reclining,” and the other half said, “No, just don’t do it.” Everyone feels in the right, as did Williams and Beach. That’s why Williams felt justified in posting her video and Beach didn’t hesitate to shove the seat forward. Don’t mess with what’s mine.

Why are these conflicts breaking out now? There never used to be such rage around reclining. Until recently, airline seats had greater pitch, or space between seats—enough both for reclining and for lowering the tray table. No one thought to ask who controlled the wedge of space because it didn’t much matter. But airlines have been shrinking the pitch, down from 35 inches not that long ago to about 31 inches today. On some planes, the pitch is just 28 inches.

There’s a lot at stake for the airlines: one inch of pitch saved per row can add up to six extra seats per flight to sell. To grow profits, airlines are squeezing ever more passengers inside a fixed steel tube—at the same time that people are growing bigger and tray tables have become precious computer stands. The stakes are high for passengers as well. In a pandemic era, each inch of personal space counts.

Ira Goldman, the inventor of the Knee Defender (whose website traffic increased five-hundred-fold after the Denver flight incident), described the problem simply: “What the airlines are doing is, they’re selling me space for my legs, and they’re selling you the space—if you’re sitting in front of me—they’re selling you the same space to recline. So they’re selling one space to two people.”

Can the airlines do that?

The law is silent. In 2018 the Federal Aviation Administration declined to regulate airplane seats, leaving seat design to the airlines. In turn, the airlines use a secret weapon that lets them sell the same space twice on every flight. The weapon is strategic ambiguity, one of the tools of sophisticated ownership design. Most airlines do have a rule—the passenger with the button can lean back—but they keep it quiet. Flight attendants don’t announce or enforce it except in extreme circumstances.

Ambiguity works to the airlines’ advantage. When ownership is unclear—and it’s unclear more often than you might imagine—people mostly fall back on politeness and good manners. For decades, airlines have counted on high-altitude etiquette to defuse ambiguous claims to the reclining wedge—that’s what Delta CEO Bastian was advocating. Airlines offload the conflicts onto passengers who have to work it out between themselves in millions of small, silent daily negotiations, just as they do when they nudge elbows for shared armrests and jostle for space in overhead bins. Money rarely changes hands. (One study, though, suggests about three-quarters of passengers would agree not to recline if the person behind offered to buy them a drink or snack.)

As airlines continue to shrink the pitch, unspoken rules over the front-to-back squeeze are breaking down. When people don’t share an understanding about who owns what, scarcity intensifies their conflicting views, and everyone ends up looking unreasonable. The Knee Defender makes the existing conflicts more visible. Goldman saw ownership ambiguity as a business opportunity and created a technological solution. The problem, though, is that a unilateral move to lock the seat violates customs of politeness. It feels like taking something without asking.

The Knee Defender may seem like a silly novelty item, but it reflects one of the great innovation engines in our society: as valued resources becomes scarcer, people compete more intensely to impose their preferred ownership story, and entrepreneurs find ways to profit.

The same clash profoundly reshaped the American West in the 1800s—but there it was farmers against ranchers. The huge cattle drives we love to watch in westerns existed for only a few decades. The numberless herds being moved to market were often roaming over private land, but homesteaders had no ability to keep them out. Cows couldn’t read no trespassing signs, and fencing was too expensive. So cowboys drove cattle over unfenced miles to railyards in Abilene and Dodge City.

Then in 1874 Joseph Glidden patented his double-strand barbed wire, hailed as “The Greatest Discovery of the Age.” This invention, as simple as the Knee Defender, suddenly provided a cheap, effective tool to exclude cattle, drawing a line where homesteaders could make their stand. The Glidden wire was described as “lighter than air, stronger than whiskey, cheaper than dust.” Ranchers fought back, engaging in fence-cutting wars that led to shootings and deaths. As one trail driver said in 1883, “It makes me sick, when I think of onions and Irish potatoes growing where mustang ponies should be exercising and where four-year-old steers should be getting ripe for market.” But in time, homesteaders won the war.

Glidden’s invention transformed the Great Plains. Arriving homesteaders were able to protect their crops. Small ranchers went out of business as they had no path to get cattle to market. Cowboys became hired hands on large-scale ranches. For many Native Americans, barbed wire—“the Devil’s rope”—effectively ended their nomadic way of life. Barbed wire was essential to creating the NO TRESPASSING version of ownership that defines so much of modern life in America.

Changes in the technology of ownership can be painful, embittering the range wars on the Great Plains and the knee wars at thirty-five thousand feet. Just as barbed wire gave farmers a way to fence out cattle, the Knee Defender gives passengers a cheap tool to exclude recliners. Both technologies offer people an effective way to impose their preferred story of ownership on contested resources, thus hastening the decline of old customs and creating disputes over what the new rules should be.

There is a difference, though: while farmers made barbed wire ubiquitous, many airlines have banned Knee Defenders—they prefer to keep selling that wedge of space twice.

The same ownership wars are playing out today on the Internet, a far more consequential and even less visible arena than airplane seats. Our clickstreams reveal much of our private lives—what we buy, who we follow, where we live, and how we vote. Clickstreams seem like they should belong to us, but in most of the world data ownership remains undefined. Facebook, Google, and other Internet behemoths (along with myriad spy agencies) are racing to stake claims. They earn billions in advertising fees as their trackers recline virtual seats into our private space, assembling uncanny profiles based on our likes and looks.

One of the central questions for our time is choosing the ownership story to govern our online lives. A few places, like the European Union and California, have taken tentative steps toward providing people with the digital equivalent of Knee Defenders. Will these protections make a difference? No one knows. There is as yet no dominant principle for data ownership. The answer is up in the air, not just for clickstreams and reclining seats but for a thousand other invisible battlegrounds where people are currently contesting claims to scarce resources.

Conflicts of mine versus mine go on, mostly out of view, until something like a cheap plastic Knee Defender makes them painfully visible. Then the prize goes to those who know how ownership really works.

“A Guy in New Jersey”

Hanging out in a local Manhattan bar, Jenna Wortham and her friends were talking about evening plans when they realized they all were looking forward to watching the season premiere of HBO’s hit show Game of Thrones. That should have been a problem. HBO owns the show, and you need to buy a subscription to stream its content. Only one of Wortham’s friends subscribed, but everyone wanted to watch in different places. Turns out, this problem was easy to solve because they streamed the show using login credentials that belonged to other people. Wortham used the login from “a guy in New Jersey that I had once met in a Mexican restaurant.”

Wortham’s story is not unusual. It’s become commonplace for people to use others’ accounts to stream shows from popular media services. Indeed, the only thing uncommon about Wortham’s story is that she is a New York Times reporter. She thought so little about the implications of using somebody else’s HBO subscription that she published a breezy (some might say, brazen) account of her night out.

What Wortham (and the Times) did not seem to realize was that she was likely admitting guilt to a federal crime under the Computer Fraud and Abuse Act, a crime punishable by up to a year in jail. It may be common to stream shows using a stranger’s password, but HBO’s terms of use expressly forbid it. It’s not “legalish,” as one Forbes writer argued in her defense. Under the law, misguided though it might be, Wortham’s act was probably criminal.

But no one seems to care—least of all HBO. Everyone knows someone who’s streaming media content using a not-exactly-legit password. Nearly 100 percent of our (law!) students raise their hands when we ask who’s illegally streaming media content. About half of these students don’t think what they’re doing is illegal (really?). The other half realize it’s illegal and do it anyway. Why do we tolerate such rampant theft?

For starters, streaming shows doesn’t feel like theft. Sharing passwords feels completely different from stealing a DVD of the same Game of Thrones show from a store. It’s highly unlikely Wortham or her friends would walk out of a store without paying, and they certainly wouldn’t boast in print about it.

Maybe the difference between illegal streaming and shoplifting just boils down to the likelihood of being caught. But that cannot be the whole story. HBO can easily figure out who is stealing its content. That’s what the Recording Industry Association of America did when it identified music fans who were downloading music via Napster and sued them each for millions of dollars. HBO can find out who you are, but it’s choosing to look the other way.

We are taught from an early age to respect others’ physical stuff. That respect is consistent with an instinct rooted in the most primitive parts of our brains. Bulldogs, birds, and bears know to stay off others’ territories. But our intuition feels different for something intangible, like an idea. As one study found, if you hear “that’s mine” coming from a young preschooler, “you can be fairly sure someone stole their toy or their food, and not their joke, story, or song.” Perhaps streaming just doesn’t activate the same primitive, territorial part of our brains. And maybe this is why sharing passwords doesn’t feel wrong, morally or legally.

Content owners understand this. They have been trying, with limited success, to change how we feel about digital stuff and make it seem more like hard, physical stuff. Hence the scary-looking notices at the start of DVDs from Interpol and the stern warnings at the start of every movie that “piracy is not a victimless crime.” Even the term intellectual property is part of this battle. Copyright, patent, and trademark lawyers made up the phrase to piggyback their clients’ concerns onto our intuitions about physical stuff. They know that for our primitive selves, copyright is not property.

In its most basic form, content owners and users are waging a battle over the story of ownership. Should digital goods be free to share, like passing along a catchy tune you heard at a concert? Or should they be ordinary property, like a mug or a bike, which law, custom, and morality prevent us from taking, even if the opportunity arises? Both stories are available.

What drives the content owner’s story? It’s not the intuitions that animate the Knee Defender conflict—attachment, first-in-time, and possession. Instead, HBO’s claims trace back to yet another of our core intuitions, the idea that labor justifies ownership—that you and you alone deserve to reap what you sow.

Rewarding labor often feels right and just, but it always favors one side of a contested choice. The fashion world provides a powerful counterexample. In fashion, designers build fortunes based on copying each other’s creations. The labor that goes into original dress designs is not protected. Knockoffs are not theft. They are perfectly legal. In many pockets of the modern economy—chefs’ recipes, coaches’ sports plays, stand-up comedians’ routines, and numerous other creative arenas—we have decided that vibrant competition and unfettered innovation matter more than rewarding creative labor with ownership. In other words, the rule is often I reap what you sow. Every year fashion designers push Congress to change the rules, so they can reap what they “sew,” but they lose.

The music recording industry, on the other hand, was more effective than the couture houses at lobbying Congress. It secured legislation so that digital music conforms to the industry’s ownership story. Based on that law, the industry has filed, settled, or threatened legal action against at least thirty thousand people. Unfortunately for the big music labels, all that activity hasn’t ended illegal downloading—but it did turn popular opinion against them.

HBO watched and learned. It realized that, as TechCrunch wrote, “account sharing is generally a gray area in the world of online streaming.” HBO decided to embrace strategic ambiguity. Though it may sound crazy, the network encourages theft of its product. HBO executives are well aware of your (and your kids’ and our students’) unauthorized streaming. But instead of treating potential customers like criminals, HBO is hooking Wortham and her friends on their shows.

HBO’s CEO Richard Plepler proudly described the company’s pro-piracy strategy as “a terrific marketing vehicle for the next generation of viewers.” Password sharing, Plepler continued, “presents the brand to more and more people, and gives them an opportunity hopefully to become addicted to it.” In a quote that lit up the Internet, Plepler added, “What we’re in the business of doing is building addicts, of building video addicts. The way we do that is by exposing our product, our brand, our shows, to more and more people.”

Competitors have noticed HBO’s counterintuitive approach to ownership design—and followed suit up to a point. Netflix CEO Reed Hastings said, “We love people sharing Netflix. That’s a positive thing, not a negative thing.” But Netflix allows only one device to use a basic account at a time.

For HBO and Netflix, the strategy depends on Wortham and other young viewers believing they’re stealing, just a little. Plepler and Hastings want lots of viewers to obsess over their shows, whether they currently pay for subscriptions or not. For them, the hope is that when today’s pirates start to earn income, more will start paying and will enjoy the feeling of going legit.

The long-term plan is subtler still. Plepler and Hastings aim to recruit viewers to their side of the ownership story: intellectual property is property, and they are being generous in letting you steal content for now.

The Hidden Rules of Ownership

This is a book about fights over airplane seats and sharing HBO passwords. It’s about whether immigrants can start food truck businesses and why life-saving drugs do not come to market, along with dozens of other challenges and riddles from all walks of life. What it’s really about, though, is how the different ways we own things link all these puzzles—from the rise of America’s new aristocracy to solutions for climate change. By the end of this book, you will see the world around you in a new and surprising way, based on a small number of fundamental insights.

Before we take you on this ride, we want to tell you what’s driving us. Both of us have been teaching for a long time, more than twenty-five years each. We’re not bad at it—our students have voted us both “Professor of the Year.” Between us, we’ve helped train over five thousand lawyers, businesspeople, and environmentalists. What we love most is watching the lightbulbs blink on as students realize that there is nothing preordained about how ownership directs our behavior, and that a few simple principles drive a complex world.

Mine! distills the essence of our work as teachers and scholars so you can get the insights without the big tuition bills. As a taste of what’s to come, we want to circle back to the stories we’ve already told—Beach’s Knee Defender and Wortham’s password sharing—and highlight the three principles of ownership they embody:

1. Our Core Ownership Stories Are Wrong

Consider, for a moment, how many common maxims there are about what’s mine. They are the lens through which we learn, from childhood onward, what ownership means. Here are six such maxims that—as it turns out—stand for all the ways scarce resources initially come to be owned:

• First come, first served.

• Possession is nine-tenths of the law.

• You reap what you sow.

• My home is my castle.

• Our bodies, our selves.

• The meek shall inherit the earth.

Regardless of whether you fly drones or insist on privacy in your home, support or oppose allowing the sale of kidneys, happily wait your turn in line or push to the front, you may reach for one of these ownership maxims to press your claim.

What is striking about all these maxims is that, despite their ubiquity, none of them are quite true. They go astray because, at root, they share an underlying commitment to a binary view of ownership. Like a light switch that goes on or off, we feel something is either mine or not mine. This simple conception is as appealing as it is misleading. Today, in an increasing array of ownership conflicts, it is becoming more accurate to say First come, last served, Possession is one-tenth of the law, I reap what you sow, and so on down the list.

In early America, the on-off idea described many ownership conflicts reasonably well. In a mostly agrarian economy, people fought over tangible property: farmland, cattle—and, most egregiously, ownership of African American bodies. Slavery was not only the central question of morality and justice in American history, it was also the country’s core ownership conflict. You were either free or the property of someone else.

By the twentieth century, the most pressing ownership debates had shifted away from these simple binaries. Instead, we fought over the blurry boundary between private property and public control. Should the owner of a lunch counter be obligated to serve people of another race? Should landowners be subject to limits on what they can build? Should patients own their excised cells that are used for scientific research?

Today the debates are shifting yet again. Many of the pressing conflicts concern the claims of one private owner against another—mine versus mine. In this new world, the old maxims are more misleading than ever.

If you click “buy now” to get a book on Kindle, you may believe, reasonably, that you own the book. Possession is nine-tenths, and so on. But Amazon says otherwise. All you own is a highly limited license. Amazon can, and indeed has, deleted books right off people’s devices. One of the company’s underappreciated skills is its facility with ownership design. What Amazon realized is that the meaning of ownership is pliable and adjustable. The company could tweak its contours and remove the features it disliked. Amazon knows—and studies have shown—that we still believe our ownership online has remained unchanged, as if owning a virtual book were just like owning a hard copy. It’s not the same. The result: we pay Amazon an unearned premium because of our mistake.

Despite the adage, customers are not always right. There is an increasing gap between what we feel like we own and what we actually own.

2. Ownership Is a Storytelling Battle—Among Just Six Stories

People sold or gave you most of what you own. But where did their ownership come from? It all traces back to a first owner asserting one of the six simple stories—embodied in the maxims we mentioned above—that everyone uses to claim everything.

The battle over those stories is like politicians fighting to win an election. We face dueling claims competing for our loyalty and belief. And these stories work because they rely on strong but conflicting intuitions about what should constitute ownership. The most important thing to realize is that if you know the stories, along with the tools and tricks of ownership design, you will be better equipped to decide for yourself which is the more persuasive story today.

Tall passengers insist on their “right to knee defense,” but that story bumps up against tired passengers asserting a “right to recline.” The airlines could easily pick one side or the other. They could put a little plaque on the seat back or a note on the boarding pass announcing their preferred rule, then make passengers comply. Or they could “precline” all the seats, setting them at a single fixed angle, as a few budget airlines have started doing.

But for now most airlines prefer ambiguity, packing more seats into the economy section and continuing to sell the same space twice. That’s why most have banned the Knee Defender. Angry and anxious passengers turn against each other without realizing the airlines are taking advantage of their conflicting stories about what’s mine. Even better—for the airlines—the discomfort creates a profitable market for higher-priced seats with more legroom and less hassle. Those skilled in ownership design know that deliberate ambiguity about seat recline can create economic value.

That’s the real story behind sky-high seat conflicts.

It’s the same with password sharing and clickstreams. At the moment, there’s an outpouring of political attention, lawsuits, magazine articles, and books on control of digital content and user data, as though the Internet creates something fundamentally new about ownership. It doesn’t. It’s the Knee Defender battle all over again. Should we block companies from leaning their data trackers into our virtual laps?

All property conflicts exist as competing stories. Each side picks the story that presents its claims as the moral high ground, and each side wants ownership bent toward its view. But don’t be fooled. There are no natural, correct descriptions that frame mine versus mine conflicts. There are, however, better and worse choices that we can make to solve these dilemmas. And if you are not the one choosing, then someone else is making the choices for you.

3. Ownership Is the Remote Control for Much of Life

Ownership rules pick winners and losers in every imaginable setting. Do you want to zip along in the carpool lane at rush hour? You can if you carry extra passengers—or, in some places, if you drive an electric car. You want to get on the airplane first? Be loyal to that airline or spend more on your ticket. The old first-in-time rule no longer operates at rush hour or the airport.

Owners of valuable resources operate a powerful remote control. They are always trying to design the particular rule that will influence others to do their will—with the most profit and least hassle. Simply by tweaking the meaning of ownership, owners can use their control over valuable resources to steer you invisibly, gently, but powerfully to act how they want. The remote control is effective because ideas about ownership become so incorporated into our everyday behavior that we don’t even notice how the rules are being chopped up, fine-tuned, and redefined to push us around.

By changing the fast lane into a reserved lane for carpools or electric cars, governments push people toward behaviors that reduce congestion and air pollution. By tolerating password sharing for the moment, HBO builds its fan base and “addicts” its future subscribers.

Ownership design is best understood as a social engineering tool designed to steer your behavior, invisibly and decisively. Ownership is not complicated. It can’t be, if we are going to navigate daily life without too much conflict. Once you see how owners can intentionally direct your actions, you may even be able to take hold of the remote control to improve your own life and to promote the common good.

Why Mine!? Why Now?

In recent years, engaging guides have helped us understand many of the mysteries of everyday life. If the tools of modern microeconomic analysis interest you, then look at Freakonomics, where Steven Levitt and Stephen Dubner provide a fresh perspective on everything from cheating and crime to parenting and sports. If you’re more psychologically minded, read Nudge, where Cass Sunstein and Richard Thaler show how to make better decisions for health, wealth, and happiness. Economics and psychology are great tools. They explain a lot. But they also miss a lot. Both tend to take ownership for granted, when it is anything but fixed.

In the chapters that follow, we use common sayings and intuitions about what’s mine as starting points to reveal the ownership design principles that control our lives. Along the way, we will pose some puzzles to consider:

• Why does a chair in the street hold your parking place after a snowstorm in Chicago but not in New York? And, conversely, why does a napkin on your drink hold your seat at some New York bars but not in Chicago dives?

• Why does Disney World charge so much for its VIP cut-the-line pass (a minimum of about $3,000), when it could make even more by charging somewhat less? And why don’t the families patiently waiting for Space Mountain protest when the one-percenters pass them by?

• Why can we sell our blood plasma but not our kidneys? And how come it’s illegal in Michigan to be paid as a gestational surrogate (carrying another couple’s embryo to term) but it’s an ordinary business deal in California?

• Why can airplanes fly through the column of air above your house but drones cannot? And why can strangers in half of America come onto your unfenced land without permission and forage wild plants but not pick apples?

How we own things provides the answers to all these questions. And in the pages that follow, you will learn the answers to dozens more puzzles that touch on every aspect of your life as a consumer, entrepreneur, and citizen. What often seems like a natural and immutable limit—it’s mine or it’s not—is actually the result of choices that governments, businesses, and others are making about how to control the scarce resources we all want.

The Rocking Chair

Here’s a puzzle to get us started.

Burr McDowell died in 1973 in upstate New York. In his will, he left his rocking chair to his adult children, Arthur and Mildred. The rickety old chair wasn’t worth any money, but both kids loved the chair and wanted it anyway. They couldn’t agree on how to share, and McDowell’s will was silent. So Arthur went to his dad’s house and took the chair. Mildred asked for it; Arthur refused. And as so often happens in America, Mildred sued. That’s how we know of the dispute. This is a real case.

Imagine you are the judge. New York statutes give no guidance; neither does the existing case law. You just have to make a choice: two kids, one chair. Pause for a moment here, perhaps, and consider what you might do. Here are a few (of the many) options that might come to mind:

• Flip a coin.

• Leave the chair with Arthur, the first possessor.

• Give the chair to Mildred, the first to the courthouse.

• Auction it. One kid wins the chair; the other gets cash.

• Let the judge rock on it until the kids reach a deal.

• Saw the chair in half and give each kid a piece.

• Order them to take turns daily, or maybe annually.

• Just burn the chair.

So what do you decide? Any choice you make opens a window into your core intuitions and impulses regarding ownership.

Flipping a coin may seem fairest. But oddly that’s the one solution in the list above judges and juries are explicitly forbidden from using. Coin flips work on the playground and to start football games, but not in the law. As a judge, you need to give a reason for choosing one party—even if you believe both sides have equal merit.

First-in-time is appealing. But how does that apply here? Arthur first took the chair; Mildred was first to court. Neither version of first seems to reward morally attractive behavior. Arthur’s actual physical possession is no more appealing as a basis for decision. Auctioning the chair would end the dispute quickly, but it privileges the wealthier child in a context where honoring family sentiment seems more appropriate. Locking the chair away until the kids reach agreement may appeal to our parental impulses, but it favors the stubborn child. Sawing the chair in half has an ironic Solomonic twist but little else going for it.

Making the kids take turns is plausible. That’s what the judge decided in the actual case: the kids were ordered to schlep the chair from home to home every six months until one died. That’s fine, except it locked these feuding siblings together under ongoing court supervision. Who pays for repairs when one of them rocks too hard and the joints get loose? What if Mildred is a week late delivering to Arthur? Perhaps the hassle and cost of switching back and forth is justified for managing child custody, but this is a chair, not a child. Also, taking turns rewards the sibling who has more time to waste carting furniture around.

How about just burning the chair? That would teach them a lesson—and it might have the useful effect of keeping future squabbling siblings out of court. Work it out yourselves. Don’t waste the court’s time. But that seems a harsh outcome for Arthur and Mildred.

Here’s the punchline: there’s no avoiding the hard work of deciding who gets what and why. You can turn to a third party, like a judge or a legislator, to answer on your behalf. But that just means putting someone else’s hand on the remote control. Or you can participate in making the choice yourself—as an owner, a consumer, a citizen. Do you favor chance or reason, time or money, speediness or strength, justice or efficiency, reward or punishment?

Unavoidably, you reveal and encode your deepest values in every decision you make about ownership.

Chapter 1

FIRST COME, LAST SERVED

Line-Standers

The best free show in Washington, D.C. is the Supreme Court. The courtroom is both ornate and intimate. You sit only steps from the justices of the highest court in the land and listen to America’s top advocates. This is democracy at its best, open and accessible to all. If you want to witness the fate of abortion, gun control, or religious freedom, you can. But you need to get there early—there are on average fewer than one hundred seats available for the public, and admission is first come, first served.

For high-profile cases, people arrive a day or more ahead of time, armed with camping chairs, sleeping bags, ponchos, and extra batteries for their smartphones. Folks in line tend to look out for one another—Supreme Court police officers refuse to monitor the line. If you have to go to the bathroom, those around you will hold your place. And they will also be on guard for people cutting in or adding friends. If someone does that, they are harangued with cries of “no cutting” and “back of the line.”

As the time to enter the Court approaches, though, a strange thing happens. Many of the disheveled people nearest the front of the line exchange their spots with gray-suited men and women. A little later the well-dressed enter the courtroom and take the best seats while those farther back in the line are not even admitted. What is going on?

Welcome to the line-standing business. Companies are paying line-standers, sometimes homeless people, to arrive days ahead, secure a spot at the front, and then wait and wait and wait. At the last minute, by the Court entrance etched with the words equal justice under law, the line-standers give way to paying clients who have the money to get in first but not the time or patience to wait. Small start-ups like Linestanding.com, Skip the Line, and Washington Express charge clients up to $6,000 for a “free” seat, while paying minimum wage to the hired line-standers who wait in the rain and cold.

Line-standing companies have transformed how seats become mine not just for Supreme Court arguments but also for open congressional hearings where the nation’s laws are debated. Hearing rooms used to be free to anyone willing to wait to see their elected representatives in action. Now those hearings are often packed with lawyers and lobbyists, all of whom paid, none of whom waited. The same transformation is happening in lines for new passports at the local federal building or building permits at City Hall.

Paid line-standers are a booming business in the private sector as well. If you’re willing to pay, you can get to the front for new iPhones at Apple stores, hot skatewear apparel at Supreme, rush Broadway show tickets, or even prime spots on New York City streets to watch the Macy’s Thanksgiving Day Parade. One line-stander employed by SOLD (Same Ole Line Dudes), a line-standing start-up, waited forty-three hours holding a spot so a client could be sure to get an audition for Shark Tank, the hit reality TV show for start-ups. Odds are that Robert Samuel, the entrepreneurial founder of SOLD, would have done better on the show than the guy from Colorado who paid Samuel for his place in line.

The same transition is happening online. The musical Hamilton was continuously sold out on Broadway for years after it opened. The producers of the show made most tickets available on a first-in-time basis on their website. The problem was that tech-savvy scalpers created computer programs—bots—that bought up all the tickets the microsecond they became available. As a result, the artists and producers earned only the tickets’ face value while fans paid scalpers’ premiums, often a multiple of the original price, on sites such as StubHub. Many weeks ticket scalpers earned more from Hamilton than did the producers and artists who put on the show. What good is the first-in-time rule if a bot will always jump the line faster than a mortal with a mouse? When Hamilton tried to outsmart the scalpers by making some tickets available only at the theater box office, companies like SOLD hired line-standers to snag them.

Bruce Springsteen tried another approach when he played his sold-out run on Broadway. He paired with TicketMaster as it debuted Verified Fan, an online system that aimed to circumvent the bots and line-standers and get at least some tickets directly to prescreened real fans. But even those tickets often ended up on the resale market—you have to be quite committed to the Boss to turn down a $10,000 offer for an $850 ticket.

How should we think about this rapid rise of paying to get to the head of the line?

For many, this transformation seems deeply unfair and undemocratic. One disappointed woman stood for days in line at the Supreme Court and still did not get to hear the 2015 case establishing the right to same-sex marriage. The real system, she said, is “Let’s pay the poor Black guys to hold the line for rich white people.” On the other hand, maybe line-standing should be viewed as a good thing—capitalism at its best, creating new jobs where none existed before, both for programmers scripting their bots and for the poor and homeless waiting in lines.

We never used to ask these questions. But today we must, because first-in-time is being dismantled from within.

Who’s on First?

For most of human history, for most resources, the rule for establishing original ownership followed a maxim expressed in ancient Roman law as “Whoever is earlier in time is stronger in right.” In other words, First come, first served.

This has long been the practice in families. Think back to your childhood Bible lessons. Why did Jacob put an animal skin on his arm to trick his blind father, Isaac, into thinking he was blessing Esau, Jacob’s rough-skinned brother? Esau was born first and by right should have received his father’s gifts. Being first got you not only paternal blessings but also earthly treasure. Jacob’s trickery let him jump the line.

The practice of primogeniture, inheritance by the firstborn son, has long decided the succession of royal families around the world. It still does today, with an egalitarian twist in countries such as Sweden and the Netherlands, which now pass the crown to the monarch’s firstborn child rather than just the first son.

First-in-time governed colonial exploration as well. Colonies in the New World were carved up among the European powers based on which nation’s explorer was first to plant his sovereign’s flag. This may hold some intuitive appeal for uninhabited lands, but what about places with people already living there? If being first is what counts, surely Native Americans had the stronger claim for owning America. Not so, said the international law of the time—as written by the European powers. When Europeans came to America, they defined first to mean “the first Christian discoverer.”

And here lies a key to understanding this ancient maxim for making things mine. Even something as factual-sounding as “who’s first” is not self-defining. The right question is “Who decides who’s first?” In American law, the answer is “The conqueror prescribes its limits,” according to Chief Justice John Marshall in Johnson v. M’Intosh, an 1823 Supreme Court decision that most lawyers read during their early days in law school. Being the first Christian European was what justified, as a matter of law, the claims of Spain to the Caribbean, Texas, Mexico, and California; of France to New Orleans, Canada, and much of middle America; and of England to New England and Virginia.

But if that’s the case, why did the world not rise in protest when Neil Armstrong planted the American flag on the moon in July 1969? That should have made the moon just as much a U.S. territory as early America was a European one. The answer is that by the 1960s, countries had renounced discovery and conquest as the basis for deciding who was first. In 1967 the United States, along with the Soviet Union and dozens of other countries, signed the U.N. Outer Space Treaty explicitly rejecting first-in-time for extraterrestrial resources.

So when Armstrong became the first human on the moon, he was not asserting American ownership there. Indeed, to make America’s intentions clear, in 1969 Congress felt compelled to pass a law stating that when a U.S. astronaut places a flag on the moon, it is “intended as a symbolic gesture of national pride in achievement and is not to be construed as a declaration of national appropriation by claim of sovereignty.”

Countries continue to play the “who’s on first” game, though, with contested results. In 2007 the Russian Navy tweaked the international community by placing a small titanium Russian flag on the bottom of the Arctic Ocean. Russia was symbolically staking a claim to the mineral-rich seabed beneath the North Pole and the trade shipping routes that cross the pole—all newly accessible because of climate change and melting ice. Though an international furor erupted over the idea that Russia might win these resources simply by flagging them first, the strategy is time-tested. As we shall see in Chapter 4, China is now implementing a version of this strategy by building and claiming islands in the South China Sea.

Territorial claims and family inheritances are not the only venues for first-in-time. Being first is also the default rule for how ordinary people claim all sorts of unowned things. It was how miners staked claims during the 1848 Gold Rush in California. In 1889, Native lands in Oklahoma were opened for pioneer settlement through “land runs” that began with a pistol shot on the state line. (Sooner was the derogatory term for those who jumped the gun.) Today well-funded start-ups are aiming to mine the moon and harpoon asteroids for water, platinum, and gold—all in tension with internationally recognized ownership rules. This is also the origin story of Uber, Airbnb, YouTube, and many other Internet businesses that raced ahead of the law to create and then capture markets. Ambiguity about ownership favors the bold, the heedless, the outlaws—those who race ahead first.

But not always.

The law looks not only to who is making the claim but also to what they are doing with it. In the 1800s, homesteaders not only had to arrive first at their 160-acre parcel of earth but also had to show that they cut, burned, fenced, planted, and wrenched sustenance from it continuously for a period of years. This was another reason courts of the day ruled that Native Americans did not own their ancestral lands. Europeans imagined Native peoples treading lightly through the forest while hunting fish and game and did not view that labor as sufficiently productive to sustain an original claim of ownership. They defined first to mean first to labor according to the agricultural and commercial ethos of the settlers.

What is first turns out to be a slippery concept—never just an empirical fact, always a legal construct. In the classic children’s book The Little Prince, we encounter a businessman counting stars. The little prince asks why and hears, “I own the stars, because nobody else before me ever thought of owning them.” But being the first to think of owning stars does not necessarily make them owned. By and large, courts and governments define and redefine what’s first to guide people invisibly and inexorably toward particular, socially approved forms of interaction with scarce resources.

Almost all the 1.3 million lawyers in America learned this insight by reading Pierson v. Post, a case about a fox-hunting dispute from 1805. Lodowick Post was riding horseback with his dogs while hunting down a fox, described by the Court as a “wild and noxious beast,” on unclaimed “waste land”—that is, a beach. In the last moments of the chase, after the fox had been exhausted, a man named Pierson appeared on the scene, easily killed the fox, and carried it away. Post sued, claiming Pierson had taken his property—the fox was Post’s because he had hunted it first and was on the verge of making the kill. (Note: it’s always worth asking who is suing. Who goes to court over one fox pelt or a rocking chair? Litigants are often deviants. Life is short. Work it out.)

So who wins? The law was silent. The judges all agreed that the first-in-time rule should convert the wild animal into something owned. But what counted as first? Here the judges split on one of the big divides of ownership design: whether to apply a bright-line rule or a standard. Bright-line rules define precise terms that tend to be predictable and easy to apply across a range of cases. Standards offer general guides that allow for fine-grained judgments and can lead to fairer outcomes in particular cases. Think of the difference between highway signs that say speed limit 55 and drive safely under the circumstances.

The majority of the judges wanted a bright-line rule. They did not want disappointed hunters in court arguing the fine points of the chase. So they created what became known as the rule of capture and decided for Pierson, the “saucy intruder.” The fox belongs to whoever “mortally wounds the wild animal and brings it under certain control.” Being first means finishing the job—not thinking about the fox or even chasing it around.

In dissent, one judge asserted that first should be defined to mean whatever maximizes the destruction of the “wily quadrupeds.” For him, the way to achieve that goal would be to ask if Post had a “reasonable prospect” of capture—an open-ended standard. Because he thought Post had such a prospect, Post was first and owned the fox. This makes a sort of intuitive sense: what was the point of investing in horses and hounds if, at the last minute, a random passerby could scoop up the fox exhausted by your chase?

So what happened after Pierson won? Did fox hunting grind to a halt? No—just the opposite. It turned out that in a first-to-capture world, hunters stepped up their game. Time has shown that the majority’s bright-line rule turbocharges innovations in capture technology, and not just for fox hunting. If you want to be first to own any wild animal, you had better adopt the most lethal methods. And this hunting rule was extended by analogy to many other natural resources. In many parts of America, if you want to own flowing underground resources—water, oil, gas—you have to innovate to ensure that you actually pump them out first.

Today the same is true for ownership of inventions. For two centuries, America used a version of a reasonable prospect rule, giving patent monopolies to those first to invent—an open-ended standard that led to much litigation. Then in 2011 America switched to a bright-line first to file rule: regardless of how much progress competing inventors made, the patent went to whoever won the race to the Patent Office. America was the last country in the world to adopt the rule of capture for patents, following a debate in Congress that substantially tracked the majority and dissenting views in Pierson two centuries earlier.

The rule of capture has substantial benefits. It motivates everyone to race harder and faster. But choosing this sharp definition of first also imposes costs. In the natural-resource context, it has led to species extinction and crashing fisheries—environmental tragedies whose solutions we will explore in Chapters 4 and 7.