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CHAPTER

Real Property Rights

INFORMATION IN THIS CHAPTER:

• • Whether owners of real property can, or should be able to, control the augmented content associated with their property

• •  The intersection of free speech and property rights in AR

• • AR’s effect on trespass, nuisance, easement, and environmental protection principles

INTRODUCTION

The primary question considered in this chapter is this: can an owner of real property stop someone else from creating an augmented layer associating digital content with that property? At first blush, this question seems to present issues of property law. Because the content being overlain upon this property is both expressive and intangible, however, we cannot answer the question without also considering the law of free speech.

We will also briefly consider additional ways in which augmented world technologies may impact other real property rights, including in the areas of trespass, nuisance, easements, and environmental protection.

THE BASIC RIGHTS AT ISSUE

A BRIEF OVERVIEW OF REAL PROPERTY RIGHTS

In light of the various ways in which this book uses the word “real,” it may be helpful to note that “real property” is the term of art that distinguishes a physical parcel of land from other sorts of property, such as portable objects (personal property) or abstract, intangible expression (intellectual property). From a legal perspective, ownership of real property is the right to possess and exclude others from a parcel of land. Such rights may be complete or limited in some respect.

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In modern society, ownership rights in most parcels of land are limited by a variety of “nonpossessory interests,” which are rights to make certain uses of the land (or to limit use by others) without actually physically occupying it. Centuries ago, for example, property rights were understood to extend from the land upwards all the way into space and down to the center of the earth. This legal concept is captured in the Latin maxim Cuius est solum, eius est usque ad caelum et ad inferos (“For whoever owns the soil, it is theirs up to Heaven and down to Hell”), which dates back to medieval Roman law and continued to be followed by English courts well into modern times. The latter half of this principle is what allows land owners to sell mining rights to the earth underneath their property.

The first half of that maxim - what can generally be called “air rights” - became a source of conflict soon after the development of aviation technology; landowners began demanding the right to exclude aircraft from flying over their property, or to at least charge them for doing so. Faced with a balkanization of airspace that would have made development of an aviation industry impossible, Congress passed the Air Commerce Act of 1926, later replaced by the Federal Aviation Act of 1958. The latter Act provides that “[t]he United States Government has exclusive sovereignty of airspace of the United States,”210 and that “[a] citizen of the United States has a public right of transit through the navigable airspace.”211 Currently, the general rule is that aircraft must fly high enough so that, in the event of an engine failure, the pilot can land the plane without undue hazards to persons or property on the ground. Specifically, in congested areas, aircraft must remain 1,000 feet higher than any obstacle within a 2,000 feet radius of the aircraft. In non-congested areas, or over bodies of water, the pilot must remain at least 500 feet from any person, vehicle, vessel, or structure. These requirements are reduced during take-off and landing. Thus, the demands of modern society have reduced the individual’s historical sovereignty over their property. (“Some nations still assert a similar principle when objecting to satellites entering the orbital space above them.”212)

Air rights became a source of profit in urban centers when those who owned relatively short or underground structures realized they could sell to others the rights to construct buildings on top of theirs. Railroad companies in particular have made significant amounts of money selling the rights to build on top of railroad stations. The Madison Square Gardens arena, for example, is built above New York City’s Pennsylvania Station (Fig. 6.1).

FIGURE 6.1

Madison Square Gardens.213

This idea of alienating one’s air rights has also contributed to the idea of the “Transfer of Development Rights” (“TDR”),214 a concept within zoning law. There are several forms of TDR, but as applied to air rights, it describes a system in which a municipality sets an arbitrary cap on how high structures can be. A developer may exceed that cap, however, by purchasing from other landowners the right to develop the space between their existing buildings and the cap. The purchaser may then exceed the cap by the amount of purchased space. Therefore, although the height of individual buildings will vary, the average height of all structures remains below the cap. In contemporary urban life, people are often referring to TDR when they use the phrase “air rights.”

The law provides various remedies for violations of a landowner’s rights. If a person enters onto someone else’s land without permission or privilege to do so, for example, they have committed trespass, and the owner could bring a cause of action to eject the trespasser and recover any damage that may have been caused. On the other hand, a landowner owes certain duties to protect the well-being of those who enter his property. Those duties vary based on how much of a right the person has to be there. Logically, trespassers are the group least entitled to the owner’s protection. Nevertheless, under some circumstances, even someone who is injured while trespassing may still sue the owner for negligence (a concept discussed in more detail in Chapter 7).

Property rights may also be infringed without ever stepping foot on the land. That is because property ownership is also understood to include the right of “quiet and peaceful enjoyment” of the land. A substantial and unreasonable interference with this right is called a “nuisance,” and landowners may bring a cause of action in court to remedy it.

THE FREEDOM OF SPEECH

As touched upon in Chapter 5, the First Amendment to the U.S. Constitution forbids Federal, state, and local governments215 from “abridging the freedom of speech, or of the press.” There has never been consensus, however, on the precise meaning of these words.

Over the more than 200 years in which courts have been interpreting these phrases, they have relied on various rationales to explain the First Amendment’s role in American society. Some argue that speech must not be restrained because “the best test of truth is the power of the thought to get itself accepted in the competition of the market”216 -what’s called the “marketplace of ideas” theory. Other rationales focus on the vital role that the free flow of ideas plays in a democratic society: “[T]o decide matters of public policy ... voters ... must be made as wise as possible. [And] this, in turn, requires that so far as time allows, all facts and interests relevant to the problem shall be fully and fairly presented to the meeting [so] that all the alternative lines of action can be wisely measured in relation to one another.”217 Still others argue instead that “[the] value of free expression ... rests on its deep relation to self-respect arising from autonomous selfdetermination without which the life of the spirit is meager and slavish.”218 Regardless of its exact purpose, however, modern courts have agreed on one thing: the freedom of speech is one of the most cherished, fundamental principles in our legal system.

That is why, even though some limits on expression will be “permitted for appropriate reasons,”219 those limits will be defined narrowly, and justifying a limitation on speech requires meeting a high burden of proof. Some established exceptions include contentneutral rules that curb the “time, place, and manner” in which expression may occur, and words that pose a clear and present danger of “inciting or producing imminent lawless action.”220 Some classes of expression have been deemed to have no First Amendment value at all, such as disclosures of purely private facts and obscenity. Similarly, commercial speech - i.e., advertising that proposes a commercial transaction - has been held to have less societal importance than most other speech. Therefore, courts are more willing to allow governments to regulate advertising than speech on political or personal ideas. This explains why trademark, false advertising, and similar laws are constitutional, and will also impact the regulation of commercial speech in the augmented medium.

AR: WHERE PROPERTY RIGHTS AND FREE SPEECH COLLIDE

AUGMENTED ADVERTISING - AND MORE - IS COMING TO REAL ESTATE NEAR YOU

As mentioned in Chapter 5, the augmented medium will allow advertisers to post commercial messages literally anywhere the eye can see. The past generation has already seen commercial sponsorship creep into such unlikely venues as grocery store floors and car wraps. Advertising dollars have largely underwritten much of the public internet’s growth, including the rise of Google, the internet’s most prominent titan. Google itself has told the government that the industry will soon be displaying ads in such novel places as refrigerators, automotive dashboards, and thermostats,221 which represents a quantum leap in the pervasiveness of commercial messaging beyond what we experience today.

But that discussion is still about advertising that is physically transmitted by digital pixels and screens. Augmented advertising will enable commercial messages to appear as if they are physically present on top of almost any surface, without anything physical needing to change about that surface. Recall Keiichi Matsuda’s “Domestic Robocop” visualization, discussed in the prior chapters, in which an individual wearing AR eyewear sees advertising plastered on nearly every flat surface within his apartment kitchen - and is even able to manually adjust the density of the messages to make the physical objects on those surfaces more or less visible amidst the digital clutter.

Now apply that same mechanism to the world outside that kitchen, and you have a sense of what augmented advertising could become. A person walking down a city sidewalk wearing AR eyewear could be shown advertising digitally plastered over every surface within view - sidewalks, buildings, park benches, passing cars, lamp posts, the clothing of passersby. City life is already thought of as dominated by commercial advertising because of the number of ads on billboards and building faces, yet such a physical infrastructure for commercial advertising will seem painfully quaint and outdated - not to mention expensive to maintain - in an augmented world.

This sort of urban experience will take time to manifest, and there will be stepping stones along the way. Current models of digital eyewear, for example, do a poor job (compared to the human eye, anyway) of recognizing the physical world around them, so visual messages are more like heads-up displays at optical infinity rather than “augmentations” that appear as if they are overlain on the plane of actual physical surfaces. Over time, the devices will catch up to where other mobile AR apps are now, able to recognize more pre-programmed surfaces in the physical world so long as those objects appear in just the right lighting and orientation. Those targets are likely to be mostly commercial symbols because the technology will need funding in order to expand. (And, as discussed in Chapter 5, these interactions will lead to squabbles between brands, such as when the coupon triggered by one company’s logo is for a competitor’s product.) Ubiquitous, on-the-fly augmentations of anything and everything are still several years away. But it is coming because it is the logical conclusion of all of the various trends we see today in digital technology and advertising models.

PROPERTY-BASED MODELS OF CONTROLLING LOCATION-BASED MESSAGES BREAK DOWN IN AR

Before the advent of AR, if I wanted an advertisement to appear above a certain piece of land or the side of a particular building, I had only one option: to erect a physical sign there. That sign could take the form of a poster, a billboard, or a digital screen, but it would need to be a physical object located on the parcel of land. For that, I would need the landowner’s permission. (For night-time-only ads, I could also project them against a physical surface on the parcel from afar, but that is only a temporary solution and may also infringe the landowner’s rights in some cases.)

In the augmented medium, however, all I need to cause a digital message to appear as if it is plastered on a particular building or place is the right software and mobile hardware. No intrusion onto the physical space itself ever occurs, so the landowner’s right to exclude me from his property is never triggered. Nor am I entering the airspace above the building, even if the digital message appears to be there, so air rights are not being violated. Nevertheless, AR is designed to create the illusion of physical presence, and ads virtually plastered onto physical places may feel like an intrusion, so resort to the law of property to regulate them is an understandable impulse.

Other commentators have also foreseen augmented advertising and the legal issues they will raise. John C. Havens, for example, discussed them and some of the legal issues they raise in his insightful piece for Mashable called “Who Owns the Advertising Space in an Augmented Reality World?”222 Noting that Google had already applied for a patent for digitally replacing physical ads within the Street View feature of Google Maps, Havens wrote that “the importance of virtual real estate may quickly supplant actual signage for advertisers. This is especially true when virtual signage could be switched dynamically for individual eye traffic depending on a viewer’s preferences.” He went on to quote Gabe Greenberg, director of social and emerging media at Microsoft, as saying that, “if the experience presents the ads in a way that makes sense for the augmented reality experience and the user’s intention, this could be a powerful advertising tool for tomorrow’s marketplace.”

These predictions are persuasive. As discussed in Chapter 4, advertisers will absolutely make use of the augmented space to customize and expand upon their messaging. This medium will offer so much more functionality than physical signage that it is likely to quickly become the dominant means of advertising, even more quickly than digital billboards have begun to overtake the printed variety. Where my view diverges from this article’s (or headline’s, anyway) approach, however, is in tying this means of augmented advertising to air rights. As discussed above, air rights are a subset of real property rights used to determine who may occupy the airspace immediately above a particular parcel of land. When (as in the scenario painted by the Mashable article) the land owner permits the advertising, air rights are not implicated. They only come into play when a third party seeks to impose its content on someone else’s airspace. May the property owner control that type of advertising?

In my view, such questions will not typically be determined according to who owns the air rights. Applying air rights to control third-party augmented content would reflect a particular assumption - specifically, that the physical location in which the augmented ad appears to the consumer should determine who gets to control the content of that ad. In other words, an owner of real property should get to determine which, if any, digital advertisements that users can see projected upon their property. An advertiser could not build a physical billboard on a plot of land without the landowner’s permission, after all; this viewpoint applies the same thinking to augmented ads.

This means of conceptualizing augmented advertising has been common in my experience because it parallels the laws that apply to the current media with which we are familiar. As the market for augmented advertising develops, however, I think it will become clear that an approach based on the law of real property does not work in this context. Property ownership is the right to exclude people and things from occupying a particular space. This model is logical - even necessary - when applied to physical objects because only one object can occupy a given physical space at any particular time.

But that model breaks down when applied to augmented content. Unlike a physical billboard, augmented content does not actually occupy the physical space in which it appears. AR is, in this respect, a mere illusion. Regardless of how convincingly the user’s mobile device conveys the impression that a tangible, three-dimensional object exists in a particular physical place, it is not actually there. A limitless number of mobile apps can be programmed to display an infinitely diverse range of content on top of the same physical space. The digital content does nothing to interfere with the property owner’s use or enjoyment of the physical property in which it appears to exist.

Therefore, property law does not help us think accurately about the AR experience. Rather, when my digital device recognizes a person, place, or thing and is triggered to augment my view of it with digital information, the experience is much more like clicking a hyperlink on a web page - except that the “web page” is the physical world around me, and the hyperlinked “text” is the person, place, or thing that triggered the display. And just as with a web page, there is someone responsible for writing the short piece of link code, for choosing to associate it with that person, place, or thing in the program being run by the digital eyewear, and for determining what information the link code will deliver to me.

IN MANY CASES, FREE SPEECH RIGHTS WILL PREVAIL

Consider the possibility, then, that the choices a coder makes in associating digital content with a tangible object is itself speech protected by the First Amendment’s prohibition of laws that “abridg[e] ... the freedom of speech, or of the press.” We can get a sense of how courts will answer this question by thinking like judges do -in analogies. When courts encounter unique factual circumstances (what they call “cases of first impression”), they draw from cases dealing with the most analogous facts they can find, and from there new case law emerges.

A good way to understand the three-dimensional “clickable world” is by analogy to the two-dimensional World Wide Web with which we interact every day. The United States Supreme Court has long recognized the internet as a “dynamic, multifaceted [medium] of communication.” Its 1997 decision Reno v. ACLU'4 struck down part of the Communications Decency Act of 1996 for infringing online free speech rights. In that case, the Court drew its own analogy to underscore the importance of online speech when it observed that, online, “any person . can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.” Soapboxes and pamphlets are historic forms of political expression that were sacrosanct to those who wrote the First Amendment.

The Court’s use of these analogies conveyed its c