Re: Abstract forms of property
Sun, 3 Jan 1999 16:47:26 EST

Eliezer S. Yudkowsky asks:

>gave you the right to bombard me with radio waves? You might as well
>dump a load of sewage on my lawn!

Recall that my discussion of the problematic nature of the FCC's claims dealt only with cases in which one's peaceable use of the spectrum *does not interfere with neighbors' uses.* The question of one's right to transmit *across* property lines raises other, tougher issues. Eliezer's comment suggests that all such transmissions constitute trespasses subject to injunction. That approach would, however, largely allow one crank to shut down all wireless communications. We would rightly object to that result, and common law would not demand it.

Common law trademark law offers a better approach to the problem, one in which the first to use a portion of the spectrum would win the right to enjoin uses that interfere with third-party communications. Under this approach, no one would have any right to control how you use spectrum *on your own property.* Interfere your neighbors' communications, however, and you might face a lawsuit.

What about the putative trespass committed when your neighbors' signals cross over your fence? Property law would probably excuse the continuance of their prior communications under easement theory. Tort law would probably reach the same result under the theory of nuisance, demanding that the crank build a barrier to unwanted signals rather than allowing her to shut down all wireless communications. Reasonableness always plays a role in shaping injunctive relief.

>When faced with inconsistent rights, create a new kind of property.

And create new inconsistencies? That seems an unwise policy. Rights will always come into conflict; the law has the hard job of sorting out which ones will prevail. Creating new property rights out of thin air merely compounds the problem.


T.0. Morrow