Lessig and Causby

by on November 7, 2007 · 6 comments

Larry Lessig has a good talk about free culture. There’s nothing in there that won’t be familiar to people who’ve read Lessig’s book, but it does a good job of briefly and succinctly laying out his basic argument.

One thing that’s worth mentioning, though. Lessig’s telling of the Causby decision is a little misleading. Yes, Justice Douglas rejected Blackstone’s notion that, in general, property rights reach to the heavens. But the Causby’s still won. What Lessig doesn’t mention is that the airplanes in question weren’t just flying over the Causby’s land. Their land was adjacent to a military base and the airplanes were at extremely low altitude when they crossed the Causby’s land, creating deafening noise.

I don’t really understand why Lessig gives the misleading impression that the Causbys lost the case. Yes, it complicates the story a little bit, but I think it would be perfectly possible to tell the story accurately and still preserve his basic, entirely valid, and quite powerful point about the importance of common sense in the law.

I used Lessig’s story myself a couple of years ago. Unfortunately I didn’t do my due diligence of reading the original case and so I wound up giving the same misleading impression Lessig did. Were I writing that article today, I definitely would have framed it differently. The full story is plenty powerful; there’s no need to oversimplify it.

  • John Overholt

    But the Causby’s still won

    Lessig gives the misleading impression that the Causbys won the case

    Either I’m confused or there’s something out of whack here. (I’m not familiar with the case, so I genuinely don’t know which it is)

  • John Overholt

    But the Causby’s still won
    Lessig gives the misleading impression that the Causbys won the case

    Either I’m confused or there’s something out of whack here. (I’m not familiar with the case, so I genuinely don’t know which it is)

  • http://www.techliberation.com/ Tim Lee

    John, I meant to say that Lessig gives the impression that the Causbys lost. I’ve corrected the post. Thanks!

  • http://www.techliberation.com/ Tim Lee

    John, I meant to say that Lessig gives the impression that the Causbys lost. I’ve corrected the post. Thanks!

  • http://gnuosphere.wordpress.com Peter Rock

    My high school class is reading Free Culture right now. A student recently posted some links noting that the Causbys received compensation for damages the military planes caused. She expressed some disappointment that Lessig did not provide those details in his book. Without further research, the book gives the impression that the Causby’s were told to go take a walk.

    I assume that while the truth is that damages were acknowledged, the planes were allowed to continue flying overhead after that. If so, perhaps this is the only aspect of the outcome Lessig is concerned with. That is, that the doctrine of property reaching “to the heavens” was thrown out and the case was decided using “common sense”.

    Regardless, it perhaps would have been better for that chapter to be clear on what the outcome actually was.

  • http://gnuosphere.wordpress.com Peter Rock

    My high school class is reading Free Culture right now. A student recently posted some links noting that the Causbys received compensation for damages the military planes caused. She expressed some disappointment that Lessig did not provide those details in his book. Without further research, the book gives the impression that the Causby’s were told to go take a walk.

    I assume that while the truth is that damages were acknowledged, the planes were allowed to continue flying overhead after that. If so, perhaps this is the only aspect of the outcome Lessig is concerned with. That is, that the doctrine of property reaching “to the heavens” was thrown out and the case was decided using “common sense”.

    Regardless, it perhaps would have been better for that chapter to be clear on what the outcome actually was.

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