In the summer of 2014, businessman James Beach boarded a Newark-to-Denver flight and deployed the Knee Defender, a $22 plastic brace that prevented the woman in front of him from reclining.
When she summoned the flight attendant to tend to what she assumed was a busted seat, Beach fessed up to his knee defense and began removing the device.
Apparently, he didn’t move fast enough.
“She just full force blasted the seat back” and almost shattered the screen on his laptop, he would later claim.
Beach pushed the seat back up and reinstalled the Knee Defender, she responded by throwing a soda at him, and the pilot diverted the flight to Chicago to dispose of the warring passengers.
In the Washington Post and on NBC’s “Today” show, it was just another case of “air rage.” But Michael Heller, a professor of real estate law at Columbia Law School, and James Salzman, a professor of environmental law with appointments at the University of California, Los Angeles and the University of California, Santa Barbara, saw something more: a window into one of the most potent, most contested, and least remarked upon forces in modern life — ownership.
Did the area behind the seat belong to Beach, who needed room for his laptop and his 6-foot-plus frame? Or was it the property of the woman in front of him, who just wanted to sit back, relax, and enjoy the flight? And why didn’t the airline have clear rules for this contested space?
These are the sorts of questions Heller and Salzman ponder in their new book, “Mine!: How the Hidden Rules of Ownership Control Our Lives.”
An easy-to-read, “Freakonomics”-style ramble through the space-saver wars of South Boston and the ingenious architecture of Disney World’s skip-the-line FastPass+, the book challenges our assumptions about who owns what — and explores how those assumptions can be manipulated, for good or for ill.
Ideas recently spoke with the authors via Zoom — Heller in his Upper West Side apartment and Salzman in his office at UC Santa Barbara. The interview has been edited and condensed for clarity.
So what does the James Beach story tell us about ownership?
James Salzman: When we hear this fight breaking out, what we don’t hear is that they’re actually telling two discrete stories. The person in front is saying “attachment”: “I have a recline button on my seat, so all the space that is attached to where my seat can recline — that belongs to me.” The person in the back seat who’s getting the laptop scrunched into their chest is saying “possession”: “I’m working in this space. And I possess, I own, I control this area — and when you lean your seat into it, it’s trespass. You’re taking something that’s not yours.”
A lot of things flow from that simple story. Let me just give you three.
The first one is the realization that this is all about battling stories. There’s no natural, correct answer for who owns the wedge of space.
The second thing is, these stories are identical to one of the most consequential debates of our time, which is, Who owns our click streams? These are our “looks” and our “likes,” they’re worth hundreds of billions of dollars, and they power much of the economy. When I go on Amazon or Google, or perhaps the Boston Globe website, they basically say “attachment”: “You’re leaving your trail of your looks and your likes on our website. It’s attached to it, we’re taking it.” And we say, “No, this is ours.”
The third point is: Why are these battles breaking out? We didn’t use to have fights over reclining seats. Well, the reason is airlines have shrunk the space between seats — the “pitch” — in order to cram more people into a steel tube. The airlines are creating this ownership conflict, and they could solve it. They could have a rule that says you can recline, or you have to ask before you recline. They could “precline” the seats. They don’t, and this is on purpose. This is what we call an example of ownership engineering. They take advantage of this ambiguity [so they can effectively sell the same space to two people].
OK, here’s an ownership question that seems particularly attuned to this pandemic moment, when we’re all so desperate for home entertainment. Why is it that most of us wouldn’t dream of stealing a DVD of “Game of Thrones,” but many of us are willing to share an HBO password?
Michael Heller: When you hear kids on a playground shouting “Mine!,” they’re always talking about their toy or their doll. They’re never saying “Mine!” about their joke or their story. It turns out that we have different areas in the brain that connect to physical possession and intangible possession. The physical possession is what links us back to our animal territoriality. So when it’s a DVD, the notion of shoplifting produces a really visceral reaction. People wouldn’t think of doing that. Sharing somebody’s password feels very different.
But when you [look at it] from the HBO side, here’s what’s so surprising — actually kind of shocking. The former president of HBO, Richard Plepler, [once said] he wanted password sharing because it helped build what he called “video addicts.” He wanted buzz about the show. And young people who might not pay for the show are extremely valuable to HBO.
So what HBO is using — and not just HBO, this is also true for Netflix — is one of the most advanced strategies of ownership design: a strategy that we call “tolerated theft.” And in this case, tolerated theft helps them build their customer pipeline. They want you to feel that you’re stealing just a little — or you’re unsure whether you’re stealing — because it gives them the possibility of later recruiting you to be a subscriber.
You write in the book about what happens when we have too much ownership. Namely, gridlock. Can you explain?
Heller: We’re all familiar with the idea that if a resource is unowned, too many people will use it. So if anyone can fish in the ocean, well, the fish will be depleted. That’s called a tragedy of the commons. Waste through overuse. But there’s an equal and opposite phenomenon that I discovered some number of years ago, which is, when you have too many owners of a resource, the resource is wasted by being underused. Wealth is destroyed and lives are lost.
The biomedical example is a very powerful one. It used to be the case that in America, scientists were rewarded for their discoveries with reputation, with pats on the back, with publication, with tenure, with Nobel prizes. But starting in 1980, America made it possible to patent many of those same discoveries. And that kicked off the biotech revolution. A tremendous amount of money went into the field. A lot more patenting. A lot more ownership. But it turned out that the drugs that actually save lives require assembling all those basic research tools. Now they’re each owned separately.
So imagine this river where there’s a separate tollbooth every hundred yards, and each one can set its own price. And you want to get from one city to the next, but you face 100 tolls. You can’t actually do it.
When I was researching this theory, what I call the tragedy of the anti-commons, the head of R&D at a big drug company told me his company had a very promising treatment for Alzheimer’s that they were simply abandoning because they couldn’t secure all of the upstream rights. So they shifted their research portfolio to drugs where they already owned the necessary intellectual property — extensions of existing drugs, rather than new categories of drugs.
You suggest that shifting our conception of ownership could help solve big problems like climate change.
Salzman: One of the most effective ways to battle climate change is to take carbon dioxide out of the atmosphere. And the best way for doing that is trees. The problem, though, is that in many parts of the tropics we’re seeing rapid deforestation. So the challenge is, how can you make the trees worth more standing than cut down?
The approaches that have been used to address this are reliant on ownership strategies. The idea is to pay landowners or states or countries to prevent deforestation — or to actually increase forest cover. Norway has been behind this, Brazil has been into this in a big way. The basic idea is that by thinking about so-called “sequestered carbon dioxide” as a resource that can either be traded or paid for, you change the incentive structure.
Heller: People may have watched “Deadliest Catch,” the TV show. It was a super-dangerous activity to go catch crabs in the Bering Sea. The rule there was first come, first served — basically a “Mad Max,” demolition-style race to be first. [Vessels rushed to catch as many crabs as they could before the fishery reached a state-imposed catch limit for the season — even if it meant braving hazardous weather.] It was more dangerous at one point to be a crab fisherman than to be on foot patrol in Iraq.
Alaska adopted one of these new tools of ownership design. They used the attachment story, the same story that attaches the wedge of space to the airplane seat. They used that story to attach fishing quotas to [individual] boats. They said, you can catch those crabs whenever works for you. So if it’s a big storm, don’t go out. If the price is low, don’t go out. And that radically transformed the fishery in Alaska. It meant that catches were more sustainable and deaths simply came to an end. It made editing “Deadliest Catch” much trickier, because it’s not a dangerous job anymore.
That tool of attachment is at the core of modern climate change design. It’s making trees more valuable standing than cut down by attaching value to the tree or the wetland in place. So you may not own the land, but we treat you as if you do. That’s “as-if ownership” and it’s one of the most powerful and unappreciated tools for solving climate change. Actually, it may be the case that the best approach to saving the planet is to make more things “mine,” not fewer.