Property Rights in Augmented Reality

Michigan Telecommunications & Technology Law Review Michigan Telecommunications & Technology Law Review

Volume 24 Issue 1 Article 2

2017

Property Rights in Augmented Reality Property Rights in Augmented Reality

Declan T. Conroy

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Property Rights in Augmented Reality

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PROPERTY RIGHTS IN AUGMENTED REALITY

Declan T. Conroy

Cite as: Declan T. Conroy,

Property Rights in Augmented Reality,

ICH

. T

ELECOM

. & T

ECH

. L. R

17 (2017).

This manuscript may be accessed online at repository.law.umich.edu.

BSTRACT

Increasingly, cities, towns, and even rural communities are being

slowly reshaped by a dynamic yet initially imperceptible phenomenon:

the elaboration of augmented reality. Through applications that place

virtual features over specific, real-world locations, layers of augmented

reality are proliferating, adding new elements to an increasingly wide

range of places. However, while many welcome the sudden appearance

of arenas for battling digital creatures in their neighborhood or the

chance to write virtual messages on their neighbor’s wall, the areas

being augmented oftentimes are privately owned, thereby implicating

property rights. Many intrusions, of course, are de minimis: an iso-

lated, invisible Pikachu unexpectedly appearing over the GPS coordi-

nates corresponding with one’s home can hardly be labeled a tragedy.

Nevertheless, other infringements—such as the inundation of a

church’s fa¸cade with offensive digital messages or the establishment of

a virtual center of commerce in one’s backyard—seem to demand a

solution. To date, however, commentators, courts, and litigants have

almost universally assumed that property law does not and cannot pro-

vide recourse for such intangible invasions.

Resisting such expectations, this Essay will argue that not only can

property law play a role in augmented reality, but that its application

in this context leads naturally to a regime that protects real property

owners’ interest in the digital space linked to their property. In the

process of so doing, this Essay will illuminate how recognizing real

property owners’ right to control relevant parcels of site-specific aug-

mented reality does not mark a novel expansion of property law but

accords—and in many ways is dictated by—existing theory and prece-

dent. The project is divided into four parts. Part I provides an overview

of augmented reality and its myriad applications, highlighting in the

process the concerns many of these applications raise for real property

owners. Part II then dissects a number of different property law theo-

ries and illustrates how rights to augmented reality—specifically rights

inhering in the owner of the corresponding parcel of land—fit comfort-

ably into each one. Finally, Part III analyzes case law supporting the

recognition of this new property interest, focusing in particular on the

18 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

ancient ad coelum and much more recent cyberproperty lines of cases.

Part IV offers a brief conclusion.

I. A

UGMENTED

EALITY

–A

VERVIEW

To understand the way in which property law can and should intersect

with site-specific augmented reality, it is first necessary to define augmented

reality and understand how it works. Augmented reality is, in short, the

product of overlaying digital images and content over the real world through

an electronic device such as a headset or smartphone.

Tom Caudell, a re-

searcher for Boeing, first pointed to the practical benefits of augmented real-

ity, or “AR,” in 1990, when he noted how AR could help direct workers

assembling aircraft parts.

These types of GPS-neutral or location-unaware

applications of AR have become common today, with current uses including

tutorials on home improvements,

assistance with industrial repairs,

and

previews on how products might look within a home.

Nevertheless, it is the

location-aware developments in AR that have attracted the most attention—

and raised the most controversy—in recent months. Site-specific AR is de-

fined by its incorporation of a user’s GPS position into the digital world.

Accordingly, instead of a program that simply identifies relevant parts of a

Volkswagen’s engine or projects Swedish furniture wherever the user points

the camera, site-specific AR overlays specific sounds, videos, or graphics on

specific real-world locations.

The now-infamous “Pok´emon Go” application—released in July of

2016—provides a useful illustration of how this works. In the game, users’

movements in the real world are tracked by their avatars’ movements on a

smartphone application. The avatar moves along a map that mirrors the real

1. This is fundamentally different than virtual reality, which consists of digital worlds

wholly divorced from our own. See Matthew Schnipper, Seeing Is Believing: The State of

Virtual Reality, V

ERGE

, https://www.theverge.com/a/virtual-reality/intro. (last visited Sept. 22,

2017) (summarizing the promise of virtual reality as “[p]ut[ting] on . . . goggles, go[ing]

nowhere, and be[ing] transported anywhere”). The arguments in this Essay are accordingly not

intended as a comment on how property rights ought to apply in virtual reality.

2. Howard Yu, What Pok´emon Go’s Success Means for the Future of Augmented Real-

ity, F

ORTUNE

(July 23, 2016), http://fortune.com/2016/07/23/pokemon-go-augmented-reality/.

3. Matt Vella, The Pok´emon Fad Shows the Unnerving Future of Augmenting Reality,

IME

(July 13, 2016), http://time.com/4405053/pokemon-augmented-reality/ (describing how a

prototype AR headset can “provide instructions for fixing a busted bathroom sink”).

4. Yu, supra note 2 (detailing how a Volkswagen application that “projects visual la-

bels and instructions in real time to guide mechanic[s]”).

5. Ben Rossi, What’s Next After Pok´emon Go? The Future of Augmented Reality as

Business Tool, T

ELEGRAPH

(Aug. 11, 2016, 4:40 PM), http://www.telegraph.co.uk/con-

nect/media-and-technology/augmented-reality-inspired-by-pokemon-go/ (reporting on an ap-

plication by the furniture retailer IKEA that allows users to “visualize how furniture will look

in their own home before buying it”).

Fall 2017]

Property Rights in Augmented Reality 19

world but includes overlaid “gyms” and “stops,”

where users can interact

with each other and the game by either battling their Pok´emon—small,

animated, collectable creatures—or amassing items that can aid in finding or

battling Pok´emon.

Pok´emon also appear before the user in a site-specific way. As a user

moves through the real world—and, by extension, moves his avatar through

the game’s map—she can monitor a list of nearby Pok´emon. Once the user

is within a several-meter radius of a Pok´emon, she is alerted to its presence

by the application. At this point, the user “enter[s] a part of the game where

the Pok´emon is superimposed over whatever [her] smartphone camera is

trained on at that moment.”

The goal then becomes to capture the Pok´emon

by throwing balls—also projected onto the real world through the

smartphone’s camera—at the digital creature. The more Pok´emon a user col-

lects, the further she advances in the game, thus encouraging users to ex-

plore as much of the real world as possible.

What is noteworthy here is that, unlike in a completely virtual video

game, Pok´emon Go directly overlays its gameplay onto the real world. Thus,

specific gyms, stops, and Pok´emon exclusively appear at specific GPS coor-

dinates. In the case of gyms and stops, the game’s developer, Niantic, aimed

to locate them at “publicly accessible places such as historical markers, pub-

lic art installations, museums, and monuments.”

Nevertheless, some gyms

and stops were ultimately placed over locations not intended to be publicly

accessible, leading to certain unwelcome consequences. For instance, after a

converted church in Massachusetts was further repurposed as a Pok´emon Go

gym, it took less than a day for the home to become overrun with people “all

intently staring at [the] house through their phone screens.”

In other situa-

tions, publicly accessible places, including the Holocaust Museum and Ar-

lington National Cemetery, have protested Niantic’s use of their GPS

locations without their consent, with each respectively having to explain that

catching Pok´emon on “hallowed ground” or in space “dedicated to the vic-

6. These maps notably feature nearly all of a town or city’s roads, alleys, and freeways

and thus resemble navigation applications such as Google Maps. See Lily Hay Newman, What

is Pok´emon Go, and Why is Everyone Playing It?, S

LATE

(July 12, 2016, 2:57 PM), http://

www.slate.com/articles/technology/future_tense/2016/07/a_comprehensive_guide_to_poke

mon_go.html.

7. Id.

8. Id.

9. Adi Robertson, What Can You Do When Pok´emon Go Decides Your House is a

Gym?, T

ERGE

(July 12, 2016, 4:46 PM), http://www.theverge.com/2016/7/12/12159422/

pokemon-go-turned-house-into-gym-augmented-reality-privacy.

10. Madelline Bills, This Church-Turned-House is Also Unwillingly a Pok´emon Gym,

OSTON

(July 11, 2016, 4:50 PM), http://www.bostonmagazine.com/property/blog/2016/07/

11/church-house-pokemon-go-gym/.

20 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

tims of Nazism” is inappropriate.

And with respect to the placement of the

Pok´emon themselves, the game’s algorithm “places the monsters more or

less at random.”

Thus, while Niantic provides procedures for the removal

of gyms and stops,

there is currently no way for a property owner to free

her GPS coordinates of the virtual critters.

This digital augmentation of reality comes at a concrete cost. For one,

players in search of Pok´emon or attempting to access a misplaced gym or

stop might trespass onto private property—common complaints include the

trampling of gardens or blockading of driveways.

But even when players

manage to limit their pursuit of the creatures to public areas, the hunt can

lead swarms of players to converge onto specific locations, creating “safety

concerns,” and “horrible” living conditions for those housed adjacent to the

beckoning GPS coordinates.

Such effects have ultimately led multiple par-

ties to file lawsuits against Niantic for monetary and injunctive relief.

One

plaintiff who brought suit after the game transformed her “once-quiet” street

into a “nightmare” summarized the effects in particularly dramatic fashion:

We don’t feel safe having people on our property looking into our

home. Nor do we feel safe with random vehicles parking, driving

11. Rebecca Hersher, Holocaust Museum, Arlington National Cemetery Plead: No

Pok´emon, NPR (July 12, 2016, 6:47 PM), http://www.npr.org/sections/thetwo-way/2016/07/

12/485759308/holocaust-museum-arlington-national-cemetery-plead-no-pokemon.

12. Erwan Lucas, Pok´emon No: Can a Place Declare the Game Off- Limits?, A

AILY

, http://artdaily.com/news/89560/Pokemon-No—Can-a-place-declare-the-game-off-lim-

its-#.V7yzZJMrLdc (last visited Sept. 17, 2017).

13. Request Removal of a Pok´eStop or Gym, N

IANTIC

, https://support.pokemongo.nian

ticlabs.com/hc/en-us/requests/new?ticket_form_id=341148 (last visited Sept. 19, 2017); Paul

Tassi, Pok´emon Go’s Latest Plagues: Disappearing PokeStops and Hacker Gym Leaders,

ORBES

(Aug. 6, 2016, 1:53 PM), http://www.forbes.com/sites/insertcoin/2016/08/06/

pokemon-gos-latest-plagues-disappearing-pokestops-and-hacker-gym-leaders/#3efc32f6373f.

14. Lucas, supra note 12 (noting that to do so would require a “modification of the

game’s algorithm, a complex process that presents a headache for the developers”).

15. E.g., Clara Lindh, What Pok´emon Go Has to Do with Armed Robbery and a Dead

Body, CNN (July 11, 2016, 12:12 PM), http://www.cnn.com/2016/07/11/tech/pokemon-go-

crazy-events/.

16. Perry Stein, Pok´emon Go’s Augmented Reality is Augmenting the Reality of This

Small Town, W

ASH

. P

OST

(Aug. 13, 2016), https://www.washingtonpost.com/local/pokemon-

gos-augmented-reality-is-augmenting-the-reality-of-this-small-town/2016/08/13/b39cd6f2–5e

1d-11e6–8e45–477372e89d78_story.html?hpidHP_no-name_hp-in-the-news%3Apage%2Fin-

the-news&tid

_tw; see also Alex Hern, Pok´emon Go: Who Owns the Virtual Space Around

Your Home?, T

UARDIAN

(July 13, 2016, 9:46 AM), https://www.theguardian.com/tech-

nology/2016/jul/13/pokemon-virtual-space-home (describing how Pok´emon Go led to “mas-

sive levels of noise after midnight, uncontrollable traffic, [and] excessive rubbish” in a small

Sydney suburb).

17. E.g., Cass Action Complaint, Marder v. Niantic, Inc., No. 3:16-cv-04300 (N.D. Cal.

July 29, 2016), 2016 WL 4073537, https://www.scribd.com/document/319964590/Pokemon-

Go-lawsuit#from_embed; Tresa Baldas, ‘We Don’t Feel Safe’: Metro Detroit Couple Sues

Pok´emon Go, D

ETROIT

REE

RESS

(Aug. 16, 2016, 11:50 AM), http://www.freep.com/story/

news/local/michigan/macomb/2016/08/15/metro-detroit-couple-suing-pokmon-go/88756410/.

Fall 2017]

Property Rights in Augmented Reality 21

slow, and hanging out on our street. We don’t know who is playing

the game, who is looking at our homes to break in or steal, who is a

pedophile or rapist. I don’t feel safe sitting on our porch, something

we love to do. We have gotten heckled and yelled at for calling the

police and we didn’t ever do so. I have been threatened because I

asked someone to leave, he said [“]shut up b**** or else.[“] What

does [“]or else[“] mean?

Unfortunately for such property owners, the imposition of these social costs

by AR applications is unlikely to die with the Pok´emon Go craze. For one,

Pok´emon Go’s immense

and unprecedented

popularity managed to add

$7.5 billion to Niantic’s partner Nintendo’s market value in just two days,

attracting widespread investor attention in what was labeled a “milestone”

for AR.

While this will surely lead to the proliferation of many more AR

games,

a number of such games already exist. For instance, “Real Strike”

promises to turn the “forest, street, office, or whatever . . . into a military

simulation field,”

“Zombies Everywhere!” invites users to “survive the

augmented reality apocalypse” by “fighting zombies,”

and “Spec Trek”

distributes “virtual ghosts” into the world for users to find and catch.

Thus,

property owners currently beset by Pok´emon trainers combing through their

gardens and patios may soon be forced to confront marauding commandos

looking for ammo caches or would-be Ghostbusters pursuing poltergeists.

Yet physical invasions and disruptions linked to virtual projections are

not be the only thing property owners have to fear from the future of AR.

18. Class Action Complaint at 13, Dodich v. Niantic, Inc., No. 3:16-cv-04556 (N.D.

Cal. Aug. 10, 2016), https://www.scribd.com/document/321245304/Local-couple-files-law-

suit-against-Pokemon-Go#download&from_embed.

19. Pok´emon Go notably captured over 20 million active users in two weeks and sur-

passed Twitter with respect to daily active users. Yu, supra note 4.

20. It was additionally the “most active mobile game ever” and “smashed the Apple

App Store downloads record.” Rossi, supra note 5.

21. Vella, supra note 3.

22. Id. The augmented reality industry is expected to be worth $90 billion by 2020.

Rossi, supra note 5.

23. Indeed, Niantic recently raised $200 million in funding for a new AR game based

off the world of Harry Potter. See Darrell Etherington, Pok´emon Go Creator Raises $200

Million Ahead of Harry Potter Game Launch, T

ECH

RUNCH

, (Nov. 24, 2017), https://tech-

crunch.com/2017/11/24/pokemon-go-creator-raises-200-million-ahead-of-harry-potter-game-

launch/.

24. Yii Universal Elite Ltd., Real Strike - The Original 3D Augmented Reality FPS Gun

App,

UNES

REVIEW

, https://itunes.apple.com/us/app/real-strike-original-3d-augmented/id5

07884100?mt=8 [https://web.archive.org/web/20160823012501/https://itunes.apple.com/us/

app/real-strike-original-3d-augmented/id507884100?mt=8].

25. Useless Creations Pty Ltd., Zombies Everywhere! Augmented Reality Apocalypse,

UNES

REVIEW

, https://itunes.apple.com/us/app/zombies-everywhere!-augmented/id5302922

13?mt=8.

26. Games4All, SpecTrek, G

OOGLE

LAY

, https://play.google.com/store/apps/details?id

=com.spectrekking.full&hl=en.

22 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

One possibility is the prospect of companies overlaying digital advertise-

ments onto specific GPS coordinates. While AR advertising today is “still in

its infancy,”

many believe that such advertising will become commonplace

in the near future.

In that future, GPS-aware AR advertising might present

property owners with the problem of images, slogans, and videos with which

they disagree being digitally plastered onto all sides of their homes or

properties.

Indeed, this can already be achieved using an application called

“WallaMe,” which allows users to augment reality by writing messages on

walls “in a real space” that can then be seen by “everyone passing by the

physical location” using the WallaMe app.

A homeowner today might

therefore have multiple offensive or racist messages pinned to his GPS loca-

tion without his consent or knowledge, a possibility that will only become

more likely as AR technology continues to gain in popularity and uses.

To date, the limited legal efforts to remedy AR incursions or offenses

have largely focused on seeking recovery and relief for the physical side

effects of actions taken in AR.

However, a more direct and effective way

of protecting the real property owners’ rights would be for courts to recog-

nize these owners’ rights over their GPS coordinates, specifically the right to

exclude unwanted AR projections on their land. The following section elab-

orates on this right and details how existing property theories, beyond

merely endorsing the right’s recognition, actively compel such a conclusion.

II. P

ROPERTY

IGHTS IN

UGMENTED

EALITY

–T

HEORETICAL

ASIS

Given the technology’s short history, little has been written—let alone

adjudicated—on whether site-specific AR should constitute divisible prop-

erty. However, the few that have been inspired to comment on the subject in

the wake of the Pok´emon Go craze have almost uniformly assumed that no

such rights exist and that real property holders have no claims against digital

27. Augmented Reality: The Future of Advertising?, E

URO

EWS

(May 5, 2015), http://

www.euronews.com/2015/05/05/augmented-reality-the-future-of-advertisement; but see, e.g.,

Eric Brackett, Snapchat and BMW Team Up to Bring Augmented Reality Ads to Life, DIGI-

TAL T

RENDS

(Nov. 25, 2017), https://www.digitaltrends.com/mobile/bmw-snapchat-create-ar-

ads/.

28. See, e.g., E

URO

EWS

, supra note 27, (declaring that AR advertising has a “promis-

ing future”); see also Mallory Russell, 11 Amazing Augmented Reality Ads, B

. I

NSIDER

(Jan.

28, 2012), http://www.businessinsider.com/11-amazing-augmented-reality-ads-2012–1?op=1

&IR=T (heralding AR as “one of the hottest new advertising trends”).

29. For one—albeit creative—vision of what such GPS-aware AR advertising might

look like, see Richard Fisher, This ‘Augmented Reality Film is Incredible. . . and Terrifying,

BBC (May 20, 2016), http://www.bbc.com/future/story/20160519-this-augmented-reality-

film-is-incredible-and-terrifying.

30. Wallame Ltd., WallaMe - Hide Augmented Reality Messages,

UNES

REVIEW

https://itunes.apple.com/us/app/wallame-hide-messages-in-real/id963058537?mt=8.

31. The Pok´emon Go class actions, for example, focus on the “foreseeabl[ility of] incur-

sions by Pok´emon Go players onto [physical] property” as the basis of their allegations of

nuisance and unjust enrichment. Class Action Complaint, supra note 17, at 14.

Fall 2017]

Property Rights in Augmented Reality 23

intrusions on their land.

Such conclusions largely spring from the belief

that the projections from Pok´emon Go and other AR apps are “not there on

the property . . . [but] only on [one’s] phone.”

Yet such reasoning both

begins and ends with physicality: because real property owners can only

have rights to physical space, they have no rights against digital projections

on their land. Not only does this static understanding of property discount

the evolving nature of the common law, it wholly overlooks courts’ well-

established practice of recognizing rights to intangible property.

Indeed,

once one successfully resists the false urge to make property rights turn on

the tangible, there emerges a compelling case for embracing property rights

in site-specific AR and identifying the relevant real property owners as the

holders of those rights.

Nevertheless, in order to determine whether particular zones of site-spe-

cific AR ought to be governed by property laws, it is first necessary to define

property. This question is unfortunately exceedingly complex and has be-

deviled scholars and judges alike for countless years.

Perhaps the easiest

definition—and the one most efficient for the purposes of this Essay—is that

property is “simply a label for whatever ‘bundle of sticks’ the individual has

been granted.”

This “disintegrated” vision of property essentially leaves

courts and legislatures free to anoint whatever rights they please as property,

as it denies the existence of any deeper, inherent meaning behind the broader

concept of “property.”

Yet though such an approach empowers courts to

add the right to control corresponding sections of AR to a real property

owner’s bundle of rights—thereby accomplishing this Essay’s goal—this so-

lution is neither satisfying nor convincing. The remainder of this section thus

focuses on slightly more substantive property theories.

32. See, e.g., Ryan Nakashima & Mae Anderson, Property Owners: Get Off My Lawn,

Pok´emon!, A

SSOC

. P

RESS

(July 14, 2016), http://www.bigstory.ap.org/article/907bac533d6644

1c9cb48b78f0a3b7fb/irked-owners-trying-pry-pokemon-go-clutch-property; Hern, supra note

16. But see Is Pok´emon Go Illegal?, A

SSOCIATE

’

IND

(July 11, 2017), http://associatesmind

.com/2016/07/11/is-pokemongo-illegal/ (questioning whether “exclusive rights to property ex-

tend to cyberspace”).

33. Nakashima & Anderson, supra note 32.

34. See infra notes 121–44 and accompanying text.

35. See, e.g., Banks v. Block, 700 F.2d 292, 295 (6th Cir. 1983) (conceding that there

can be “no precise definition of a property interest”); Abraham Bell & Gideon Parchomovsky,

A Theory of Property, 90 C

ORNELL

L. R

. 531, 534 (2005) (describing the field of property

law as being in “insoluble theoretical disarray”).

36. Edward L. Rubin, Due Process and the Administrative State, 72 C

. L. R

. 1044,

1086 (19884); Cf. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972).

37. Cf., Thomas C. Grey, The Disintegration of Property, in N

OMOS

XXII: P

ROPERTY

69, 70 (J. Roland Pennock & John W. Chapman eds., 1980) (asserting that the understanding

that property rights are distinct from other legal rights “cannot withstand analysis”).

38. In addition to the “bundle of rights” theory, Professors Bell and Parchomovsky,

supra note 35, at 541–50, all of which are analyzed to some degree below: natural rights,

utilitarianism, and neo-conceptualism.

24 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

A. The Personality Theory of Property

One way to understand interests in site-specific AR as amounting to

property rights is through the personality theory of property. Outlined in

depth by Professor Margaret Radin,

the personality theory is premised on

the notion that “to achieve proper self-development—to be a person—an

individual needs some control over resources in the external environment.”

The connection between personhood and external objects in turn suggests

that “the person should be accorded broad liberty with respect to control

over th[e] thing[s]” that define her or, in other words, property rights over

those things.

Professor Radin additionally proposed that the strength of

property rights should vary with the extent to which the relevant thing is

bound up with one’s identity: “those rights near one end of the spectrum—

fungible property rights—can be overridden in some cases in which those

near the other—personal property rights—cannot be. . . . The more closely

connected with personhood, the stronger the entitlement.”

At first blush, the personality theory does not seem to support rights in

AR—how could intangible spaces become so intertwined with personality

so as to warrant property right protection? Nevertheless, there is ample evi-

dence to support the fact that individuals are increasingly electing to develop

connections and elaborate an identity through abstract avenues, seeking self-

creation in the virtual world rather than the physical world. Indeed, “more

than one-sixteenth of the average [Facebook] user’s waking time is spent on

Facebook,”

and one-fifth of Americans report going online “almost con-

stantly.”

Courts have not failed to take heed of this development and adjust

legal protections accordingly. For instance, in the process of unanimously

holding that a warrantless search and seizure of a phone is unconstitutional,

the Supreme Court in Riley v. California

observed that cell phones are a

“pervasive and insistent part of daily life,”

and harbor “for many Ameri-

cans ‘the privacies of life.’ ”

More revealingly still, that Court likened a

search of files contained in the cloud—a wholly abstract and intangible me-

39. Margaret Jane Radin, Property and Personhood, 34 S

TAN

. L. R

. 957, 957–58

(1982).

40. Id. at 957–58. (This foundational point in turn flows in large part from the work of

Georg Wilhelm Friedrich Hegel, in particular Philosophy of Right (T. M. Knox trans., 1967)

(1821)).

41. Id. at 960.

42. Id. at 986.

43. James B. Stewart, Facebook Has 50 Minutes of Your Time Each Day. It Wants

More., N.Y. T

IMES

(May 5, 2015), http://www.nytimes.com/2016/05/06/business/facebook-

bends-the-rules-of-audience-engagement-to-its-advantage.html.

44. Andrew Perrin, One-Fifth of Americans Report Going Online ‘Almost Constantly’,

ESEARCH

ENTER

(Dec. 8, 2015), http://www.pewresearch.org/fact-tank/2015/12/08/

one-fifth-of-americans-report-going-online-almost-constantly/.

45. Riley v. California, 134 S. Ct. 2473 (2014).

46. Id. at 2484.

47. Id. at 2495 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

Fall 2017]

Property Rights in Augmented Reality 25

dium—to a thorough raid of a house,

the most sanctified space in Fourth

Amendment jurisprudence.

Such acknowledgements of the value and im-

portance of intangible rights have by no means been limited to rights against

searches and seizures; they have repeatedly materialized in recent cases con-

cerning property rights.

In this context, not only does the right to control intangible site-specific

features appearing over an individual’s real property seem deserving of pro-

tection, it arguably falls into the category of intangible rights most deserving

of property protection. Rights over projections on one’s GPS coordinates,

unlike other intangible rights, are notably tied to the most foundational prop-

erty right, the right to real property. Indeed, the Supreme Court in this con-

text has affirmed that the right to control what is communicated from one’s

private property is “unique and important,”

and that efforts to circumscribe

or eliminate that right are unconstitutional.

This logic applies with similar

force in AR. For instance, it seems elementary to state that a property owner

who supports the freedom to marry ought to be able to prevent a billboard

condemning homosexuals to eternal damnation from being erected on her

property, regardless of whether that billboard is real or digital;

even if a

smartphone is required to see the message, its appearance on one’s private

property will inevitably affect how viewers perceive and relate to the prop-

erty and its owner. Far from a thought exercise in a type of advertising that

does not yet exist, this very type of scenario is already presenting problems

for property owners. For instance, the Holocaust Museum expressed concern

about reports that a “poison-gas type Pok´emon” was appearing within the

museum via the Pok´emon Go app.

Whereas finding such a projection in a

public park or suburban backyard might not give one pause, its manifesta-

tion in the Holocaust Museum risks trivializing the plight of millions of peo-

ple and undermining the Museum’s ability to solemnize and honor history.

Site-specific AR’s ability to change the meaning of that which surrounds it

emphatically underscores how the right to control the self-defining messages

conveyed by real property needs to extend into AR.

Unsurprisingly, the intimate connection between real property and self-

definition did not escape Professor Radin. In her article, she noted how one

“embodies or constitutes oneself” in one’s home, which is “affirmatively

48. See Riley, 134 S. Ct. at 2491.

49. Cf. Kyllo v. United States, 533 U.S. 27, 34 (2001) (labeling the interior of a home

“the prototypical. . . area of protected privacy”).

50. See infra notes 121–44 and accompanying text.

51. City of Ladue v. Gileo, 512 U.S. 43, 54 (1994).

52. See id. at 58.

53. Cf. W. Virginia State Board of Ed. v. Barnette, 319 U.S. 624, 645 (1943) (recogniz-

ing “the right to refrain from speaking at all” as constitutionally protected activity).

54. Toby Meyjes, Koffing the Poison Gas Pok´emon Found at Holocaust Museum,

ETRO

(July 12, 2016), http://metro.co.uk/2016/07/12/koffing-the-poison-gas-pokemon-

found-at-holocaust-museum-6002503/.

26 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

part of oneself.”

Indeed, Professor Radin ultimately recognized that the

“basis of individuality” in our culture flows from one’s rights over her

home.

This same logic applies to rights of commercial entities or corporate

bodies over non-residential real property, such as the United States Holo-

caust Memorial Council’s rights over the Holocaust Museum. Accordingly,

as a direct offshoot of the foundational right to real property, interests in

site-specific AR— by Professor Radin’s own logic—fall squarely on the

“property” end of her theory’s spectrum. Nevertheless, while Professor Ra-

din’s theory seems to strongly endorse property rights over location-specific

AR, her theory is far from universally embraced.

A truly robust defense of

such rights therefore requires the endorsement of other theories.

B. The Utilitarian Vision of Property

A completely different approach to property is to view it from a utilita-

rian perspective and to define rights with reference to their level of social

utility. While such theories certainly have a flavor of the property-is-any-

bundle-society-decides vision of the law, they notably contain a bit more

underlying substance. For instance, Jeremy Bentham—whose work on prop-

erty is generally regarded as the first in the utilitarian vein

—opined that

property should essentially encompass those objects from which people, by

established expectations, expect to draw advantages.

Though malleable,

the dimensions of this theory’s definition of property are not entrusted to the

sole discretion of judges and legislators, but instead must be ascertained with

reference to outside, objective criteria.

If Bentham’s work marked the “flowering” of a particular strand of utili-

tarianism,

the law and economics movement amounted to an extended and

active spring for the entirety of the species.

Yet though works like Guido

Calabresi and Douglas Melamed’s Property Rules, Liability Rules, and Ina-

55. Radin, supra note 39, at 992.

56. Id. at 996.

57. See Bell and Parchomovsky, supra note 35, at 542 (describing such natural rights

theories as having “f[allen] into eclipse”).

58. See, e.g., Frank Michelman, Property, Utility, and Fairness: Comments on the Ethi-

cal Foundations of “Just Compensation” Law, 80 H

ARV

. L. R

. 1165, 1211 (1967) (distin-

guishing Bentham’s work on property from the “pre-utilitarian property theories”).

59. Jeremy Bentham, Theory of Legislation 137 (R. Hildreth trans., Weeks, Jordan, &

Co. 1840) (1802).

60. Michelman, supra note 58, at 1211.

61. But Cf. John J. Donohue III, The Law and Economics of Tort Law: The Profound

Revolution, 102 H

ARV

. L. R

. 1047 (1989) (showing that the incorporation of economic

analysis, presently in tort, has opened new avenues of inquiry to further legal theory).

Fall 2017]

Property Rights in Augmented Reality 27

lienability

proved enormously influential,

as Professors Bell and

Parchomovsky note, these works were oftentimes more concerned with how

to best protect property rather than how to define it.

Thankfully, Bell and

Parchomovsky offered to fill this gap by further developing Bentham’s utili-

tarian understanding of what constitutes property in what they called the

“value-oriented theory of property.”

Galvanized by the intuition that “prop-

erty law is a legal institution organized around creating and defending the

value inherent in stable ownership,”

the value-oriented theory defines

property as “assets for which protection of stable ownership will enhance

social welfare.”

Accordingly, while property under this theory is in an eter-

nally evolving state, at any given moment its parameters can be identified by

reference to the value that can be derived from protecting particular

interests.

Utilitarian theories broadly support recognizing rights to site-specific

AR as property. Just as people do—or soon will—expect to draw advantages

from such spaces, so too does their protection enhance social welfare. For

one, as mentioned above, in the absence of such protection anybody would

be able to project hateful, controversial, or inappropriate messages or adver-

tisements onto private property, thus leaving the owner perpetually at risk of

being tied to statements or causes they reject. Yet apart from the costs to the

individual—be it the derailment of the self-development process described

by Professor Radin or an assault on one’s right to free speech

—failing to

recognize rights to AR would lead to larger social and economic inefficien-

cies. In the absence of such rights, real property owners would be forced to

constantly monitor the AR space connected to their property to ensure that

no objectionable messages or trespass-encouraging digital creatures were in-

vading their space. When such encroachments did inevitably take place in

this rights-deprived universe, those who hoped to protect their domains

62. See generally Guido Calabresi & A. Douglas Melamed, Property Rules, Liability

Rules, and Inalienability: One View of the Cathedral, 85 H

ARV

. L. R

. 1089 (1972).

63. Fred Shapiro & Michelle Pearse, The Most-Cited Law Review Articles of All Time,

110 M

ICH

. L. R

. 1483, 1489 (2012) (ranking the article sixth in a 2012 study of the most-

cited law review articles of all time).

64. See Bell and Parchomovsky, supra note 35, at 588.

65. See id. at 539, 643-47.

66. Id. at 538.

67. Id. at 563.

68. See id. It is worth noting, however, that—as the authors willingly concede—this

theory does not fully track existing property law. See id. at 602–08 (suggesting reforms to

nuisance and takings law so that they better track the value-oriented theory).

69. The merits of First Amendment claims in this context would likely center on

whether the right to refrain from speaking includes the right to be free from messages pro-

jected onto one’s property. Cf. Wooley v. Maynard, 430 U.S. 705, 715–17 (1977) (finding that

private property can serve as a “billboard” and that—at least in the case of license plates—the

government cannot compel individuals to display specific messages on those billboards).

28 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

would be forced to react by investing time and money into a legal action,

or hope that some extra-legal endeavor might yield results. This extreme

inefficiency, moreover, would only be compounded by the reality that any

success real property owners might have against unwanted AR advances

would not create any deeper sense of security or stability; while one server’s

projections might be removed, there would remain a near infinite number of

other servers still free to project onto the property until told otherwise. As a

means of preventing this unpredictable and utterly undesirable state of af-

fairs, recognizing property rights in AR clearly presents itself as a way to

both stabilize existing ownership interests and enhance social welfare more

broadly.

Admittedly, not recognizing property rights in site-specific AR also has

social benefits. Freeing software developers from the concern that their pro-

jections might invade private property could encourage and facilitate wide-

ranging and innovative uses of AR, which might lead to a larger and more

expansive augmented universe for society to explore. Yet the fact that social

benefits could flow from the non-recognition of a property right is not suffi-

cient to justify such non-recognition under the utilitarian theory; such bene-

fits would need to affirmatively outweigh those tied to recognizing the right.

In this respect non-recognition falls short, a fact underscored by the danger

that a lack of rights in AR could result in a tragedy of the commons.

With-

out a restraining force, a developer would be incentivized in the short run to

overwhelm certain attractive locations—such as properties located in very

dense parts of the world—with AR features. Other developers would be sim-

ilarly motivated to populate these AR coordinates, resulting in a massive

concentration of projections. This, in turn, could result in the degradation of

that resource. While such features would still exist on their respective serv-

ers, they would prove inaccessible in real life as crowds attempting to inter-

act with the AR feature prevented others from so doing;

this would mean

that some of the most compelling augmentations of reality would be effec-

tively nonexistent.

Weighed against the larger gains in social welfare to be

70. Here, property owners might seek relief for free speech issues in a compelled speech

claim or vindication of their property rights in a nuisance or trespass suit. However, in a world

where site-specific property rights in AR did not exist, the ability of owners to prevail on these

claims based solely on incursions in AR seems improbable. This therefore means that there

would be no legal recourse for those with free speech concerns, and that those eager to defend

against a nuisance or trespass would need to helplessly wait until the predestined nuisance or

trespass occurred before taking action.

71. See generally Garrett Hardin, The Tragedy of the Commons, 162 S

CIENCE

1232

(1968).

72. As previously mentioned, such a scenario, far from science fiction, has already

played out in numerous locations around the globe. See Stein, supra note 16. That such con-

centrations of people have also led to unwanted noise, pollution, and general chaos serves as a

further testament to the sizable the social costs of not recognizing property rights in AR. Id.

73. This is concededly also a risk under a private property AR regime, as property

owners of attractive AR locations could enforce their right to exclude. The situation is thus

Fall 2017]

Property Rights in Augmented Reality 29

had from recognizing property interests in site-specific AR, this laissez-faire

approach to rights over AR thus reveals itself as both unattractive and

inefficient.

An important analogue to the argument that recognizing property rights

in site-specific AR is more efficient than not doing so is the implication that

efficiency would be maximized by granting those property rights to the own-

ers of the real property linked to the specific GPS coordinates. Indeed, many

of the costs associated with a non-recognition regime could only be avoided

by granting property rights to the relevant real property owners, as other

owners would likely be less incentivized to appropriately balance digital en-

hancements against their physical costs. What is more, any other regime

would substantially raise information costs, as those attempting to project

objects onto certain coordinates would have no easy way of ascertaining the

owner of those coordinates.

There also exists the risk of the creation of a

sort of anticommons, “a type of property regime that may result when initial

endowments are created as disaggregated rights rather than as coherent bun-

dles of rights”;

for instance, if rights were awarded to the first to occupy a

particular coordinate but extinguished after a certain period of nonuse, there

might easily emerge a “world-class tangle” of claims over the coordinates

corresponding with real property and a resultant inability to put those coordi-

nates to a unified use.

In light of these and related issues, the utilitarian

theory ultimately points toward recognizing real property owners’ property

rights to AR over their GPS coordinates as a means of maximizing overall

social utility.

C. “Property as the Law of Things”

A third and final starting point for understanding property and why

rights to site-specific AR are worthy of being included in that category is the

different than one in which non-recognition of the right inherently leaves “every member

worse off than he would have been. . . [with] some restriction.” Richard Epstein, Why Restrain

Alienation?, 85 C

OLUM

. L. R

. 970, 978–88 (1985) (compiling such situations). However,

owners of attractive AR locations would likely be incentivized to efficiently balance income to

be derived be “leasing” their GPS coordinates against a desire to not flood their property with

an overwhelming number of visitors, which would yield a more desirable outcome than the

elimination of accessibility threatened by a common rights regime.

74. See Thomas Merrill & Henry Smith, Optimal Standardization in the Law of Prop-

erty: The Numerus Clausus Principle, 110 Y

ALE

L.J. 1, 8 (2000) (“The existence of unusual

property rights increases the cost of processing information about all property rights. Those

creating or transferring idiosyncratic property rights cannot always be expected to take these

increases in measurement costs fully into account, making them a true externality. Standardi-

zation of property rights reduces these measurement costs.”).

75. Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition

from Marx to Markets, 111 H

ARV

. L. R

. 621, 623 (1998).

76. Id. at 684. See also Dan Hunter, Cyberspace as Place and the Tragedy of the Digital

Anticommons, 91 C

. L. R

. 438, 509–14 (2003) (detailing how the tragedy of the anticom-

mons can occur in the digital realm).

30 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

idea, emphasized in recent years by Professors Thomas Merrill and Henry

Smith, that property is a “distinctive type of right to a thing, good against the

world.”

There are two important points in that seemingly simple definition

worth emphasizing. First is the idea that property need be a “thing,” or a

“chunk of the world.”

On its face, this might seem to demand some sort of

physicality out of that to which one is claiming an entitlement. This notion is

undercut, however, by the reality that property law recognizes rights to many

“things” that have no tangible expression.

The galvanizing force behind

this idea instead seems to be that property rights can only inhere in some-

thing capable of “precise definition.”

The second element worth emphasiz-

ing is the “in rem character of the right.” To qualify as a property right, an

owner must be able to exclude the entire world from using the relevant

thing. Thus, the right to exclude from something is a necessary and suffi-

cient condition of property: “give someone the right to exclude others from a

valued resource . . . and you give them property.”

The Smith and Merrill theory points squarely toward the existence of a

property right over AR spaces associated with particular parcels of land.

Working off of the basic definition, the first question is whether there exists

a “thing.” While “all augmented reality appearing on a particular set or sets

of GPS coordinates” does not have the best ring to it, there certainly appears

to be a “thing” there. For one, all AR over specific GPS coordinates is a

concept capable of precise definition, and conforms quite literally to Profes-

sor Smith’s notion of a chunk of the world. While an admittedly infinite

number of servers might have the ability to access and modify the relevant

“thing,” this is inconsequential; countless people, animals, particles, and

electromagnetic waves intrude every day onto real property, but that does

not negate the existence of the underlying right. Despite the inherently ab-

stract nature of the right, there accordingly seems sufficient reason to chris-

ten rights to AR over specific physical areas as a “thing.”

Satisfying the right to exclude prong proves slightly more challenging.

There currently does not exist an easy way for real property owners to ex-

clude software developers from configuring servers in a way that makes AR

77. Thomas Merrill and Henry Smith, What Happened to Property in Law and Econom-

ics, 111 Y

ALE

L.J. 357, 358 (2001).

78. See Henry Smith, Property as the Law of Things, 125 H

ARV

. L. R

. 1691, 1702-03

(2012).

79. See infra notes 121–44 and accompanying text.

80. Cf. G.S. Rasmussen & Assoc. v. Kalitta Flying Serv., 958 F.2d 896, 903 (9th Cir.

1992) (establishing “capable of precise definition” as the first requirement in the circuit’s test

for recognizing a property right).

81. Thomas Merrill, Property and the Right to Exclude, 77 N

. L. R

. 730, 730

(1998).

82. While Professor Merrill elsewhere speaks of the “thing” condition in terms of a

“valued resource,” see id. at 730, this does not change the calculus, as space in site-specific

AR also amounts to a valued resource. See supra notes 58–76 and accompanying text.

Fall 2017]

Property Rights in Augmented Reality 31

features appear over the property owners’ GPS coordinates. This reality,

however, is far from determinative. For one, technology might soon evolve

that empowers real property owners to control what can and cannot appear

over their GPS coordinates.

Moreover, the mere fact that developers can

intrude onto a real property owner’s GPS coordinates does not mean that

such intrusions are necessarily legal. Trespassers can oftentimes easily enter

onto private property, yet the possibility of such penetration does not negate

the existence of the underlying property right. Thus, as with real property,

though the right to exclude in AR will likely depend on the police power of

the state and the owner’s ability to “fence off” his property, this should not

prevent courts and legislatures from recognizing the existence of the right.

Moreover, approached from a slightly different angle, there is a way to

argue that real property owners already possess the right to exclude AR fea-

tures from their properties’ coordinates. In order for a projection designed to

appear on a particular GPS coordinate to become a “thing” capable of value,

the user must go to that particular GPS coordinate; a savage digital zombie

designed to chase all those who happen onto Blackacre remains a mere ab-

straction unless the owner of Blackacre allows a person using the application

to enter.

Yet there is no default right or license for those participating in

AR applications to ignore underlying property laws and trespass in order to

make AR features appear. Thus, to the extent that an AR feature can tran-

scend existence as an abstraction and become a valued resource, the owner

of the underlying GPS coordinate must grant consent to users seeking to

observe the feature digitally pinned to her property. This means that the

owner of the underlying property has the ultimate right to exclude: not only

does she possess the ability to control who may observe and engage with the

AR, she possesses the ability to effectively destroy the AR for the rest of the

world by uniformly denying access to her property.

On the surface, this last argument might seem internally inconsistent:

why deny the software developer who creates the AR features the right to

features he places into AR but cannot access yet grant rights to the real

property owner for equally abstract rights to augmented space over their

property? The answer is that, whereas the former right has value only when

allowed to “materialize” by visitors to the GPS coordinates, the latter right

has inherent value. There is no value to the developer of an AR game in

83. To a certain extent, this technology is already a reality. For example, though banned

in certain states, GPS jamming technology creates a disruption around the device that prevents

devices from connecting to satellites. See e.g. Kate Allen, How the Super-Rich are Making

their Homes “Invisible”, F

INANCIAL

IMES

(Aug. 27, 2016), https://www.ft.com/content/

7a707048–648d-11e6–8310-ecf0bddad227 (describing jamming devices that can block loca-

tion trackers). Thus, if the owner of Blackacre configured the device to jam all GPS signals

over Blackacre, she would effectively be able to exclude AR features from her property.

84. Cf. Justin Hughes, The Philosophy of Intellectual Property, 77 G

. L.J. 287, 295

(1988) (“[The] exclusivity [of intellectual property rights] touches only the concrete, tangible,

or physical embodiments of an abstraction.”).

32 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

placing AR features on property that no user can access. Here, property law

should function as it does in the copyright or patent domain, where it disfa-

vors claims to nebulous, unrealizable ideas and designs; copyright law only

gives ownership in “works of authorship which are fixed in a tangible me-

dium of expression,”

while patent protection “will not obtain in the ab-

sence of some tangible evidence of the idea.”

By contrast, because a real

property owner’s AR rights have independent value,

they are more akin to

“cyberproperty” like domain names or websites;

unlike patents or copy-

rights, the value of these rights is not dependent on some additional act of

elaboration. Accordingly, not only is a distinction between AR rights

claimed by developers versus AR rights owed to real property owners sensi-

ble, it is a distinction already recognized in parallel areas of property law.

Nevertheless, those crusading for the rights of developers in GPS-sensi-

tive AR might further counter that site-specific AR amounts to more of a

“thing” when it is filled with projections; adopting a Lockean view of prop-

erty, such proponents might maintain that it is wasteful to grant property

rights to owners who simply leave the AR over their GPS coordinates un-

used.

Those who subscribe to such a view might further argue that property

rights ought be awarded to those who labor to create value where there pre-

viously was none, such as developers adding projections into otherwise “va-

cant” space.

Yet while such an approach might have a compelling internal

logic, it is ultimately an approach that the law has repeatedly refused to

endorse. For instance, the traditional approach to improvements to land by

trespassers holds that the trespasser is not entitled to the value of his labor.

And on a broader level, the law recognizes real property owners’ right to

unused airspace immediately above their property;

just as the owner of a

drone cannot fly his contraption over property and then claim ownership of

85. Wendy Gordon, An Inquiry into the Merits of Copyright, 41 S

TAN

L. R

. 1343,

1380 (1989) (quoting 17 U.S.C. § 102(a) (1982)).

86. Bell and Parchomovsky, supra note 35, at 584 n.274 (citing Pfaff v. Wells Electron-

ics, Inc., 525 U.S. 55, 60–63 (1998). See Hughes, supra note 84 (“[Intellectual property] rights

invariably focus on physical manifestations of the res.”).

87. See supra notes 39–76 and accompanying text.

88. See generally Hunter, supra note 76.

89. See John Locke, S

ECOND

REATISE OF

OVERNMENT

, § 42 (ed. C.B. Macpherson

1980) (1690) (“[L]and that is left wholly to nature, that hath no improvement or pasturage,

tillage, or planting, is called, as indeed it is, waste . . . .”).

90. Cf. id. at § 27 (“[F]or this labour being the unquestionable property of the labourer,

no man but he can have a right to what that is once joined to, at least where there is enough,

and as good, left in common for others.”).

91. See R

ESTATEMENT

IRST

)

ESTITUTION

, § 42 (A

. L

NST

. 1937). While the

Third Restatement adopts a slightly more forgiving approach, it limits restitution to that neces-

sary to prevent “unjust enrichment” and does not recognize any right to restitution for those

cognizant of the trespass, a category that would likely encompass developers placing AR fea-

tures on private property. See R

ESTATEMENT

HIRD

)

ESTITUTION

, § 10DD (A

. L

NST

. 2000).

92. See infra notes 96–119 and accompanying text.

Fall 2017]

Property Rights in Augmented Reality 33

that airspace, so too should a developer not be able to claim ownership over

AR on a particular GPS coordinate based off of mere occupation.

This point is further underscored by analogizing to the law surrounding

site-specific art. While artists oftentimes challenge attempts by the relevant

real property owner to remove work from its intended location, courts have

generally sided with the real property owners in such conflicts. For instance,

in Serra v. U.S. General Services Administration,

the Second Circuit held

that the government could relocate Richard Serra’s site-specific work “Tilted

Arc” away from its “artistically inseparable” location without violating the

artist’s free expression and due process rights.

And even after the passage

of the Visual Artists Rights Act of 1990,

which recognized an artist’s gen-

eral power to “prevent any intentional distortion, mutilation, or other modifi-

cation” of her art,

courts have continued to side with real property owners

in disputes over site-specific art.

This consistent position highlights the

broad deference courts accord to holders of an underlying property right,

even when refusing to recognize a dueling claim raises constitutional con-

cerns. Applied in the context of rights over site-specific AR, these cases

suggest that the interest of a real property owner in her AR space could, in

some instances, prove so strong as to trump First Amendment arguments

raised by software developers.

Of course, any attempt to “thingify” in the interest of crafting a property

right is ultimately subject to the critique leveled over 80 years ago by Felix

Cohen that such efforts veil the circular process of deriving rights from

value, even though value would not exist without courts protecting the un-

derlying right.

This, of course, is true: the right to control projections over

a GPS coordinate is inherently abstract and would be devoid of meaning and

value without the intervention of a court. Yet to parallel a response to Cohen

forwarded in Professor Joshua Fairfield’s defense of virtual property,

for

reasons discussed above, rights of real property owners in AR ought to be

protected not merely because they are property rights, but because recogniz-

ing such rights best preserves owner autonomy and best promotes efficient

93. Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045, 1052 (2d Cir. 1988).

94. Id. at 1046–48.

95. Visual Artists Rights Act of 1990, 17 U.S.C.A. § 106A (West 2012).

96. Id. § 106A(a)(3)(A).

97. See, e.g., Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 143 (1st Cir. 2006)

(holding that VARA does not apply to site-specific art “at all”); but see Kelley v. Chicago Park

Dist., 635 F.3d 290, 306–07 (7th Cir. 2011) (questioning Phillips’s interpretation of VARA).

98. See Felix Cohen, Transcendental Nonsense and the Functional Approach, 35

OLUM

. L. R

. 809, 815 (1935) (“[T]he fact that courts did not protect [a right] would make

the [right] valueless, and the fact that it was valueless would then be regarded as reason for not

protecting it.”).

99. See Joshua Fairfield, Virtual Property, 85 B.U. L. R

. 1047, 1093–94 (2005).

34 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

use. And even without such defenses, unlike with virtual property,

100

there is

ultimately less to “thingify” when it comes to rights in site-specific AR; they

directly track the most elemental right in the property canon, the right to real

property. Perhaps for this very reason, therefore, recognizing real property

owners’ rights in digital spaces overlaid over their land as property accords

with the theoretical underpinnings offered for the law.

101

III. P

ROPERTY

IGHTS IN

UGMENTED

EALITY

—C

ASE

While abstract property theories’ alignment with the move to recognize

rights in site-specific AR is relevant from a theoretical standpoint, it would

ultimately be meaningless from a practical standpoint if such recognition ran

contrary to established precedent. Thankfully, however, embracing property

rights in AR also aligns with multiple distinct threads of property case law.

Indeed, just as courts have historically accepted the legal right of real prop-

erty owners to claim ownership over associated areas and objects, so too

have they more recently come to embrace the recognition of rights in cyber-

property. These two threads together serve as a formidable bedrock on

which courts can begin to construct a regime of property rights in AR.

A. The Ad Coelum Rule and Airplane Overflight Cases

According to William Blackstone’s famous articulation, land has an “in-

definite extent, upwards as well as downward”; it includes “not only the face

of the earth, but everything under it, or over it.”

102

This vision, known as the

ad coelum rule,

103

held that even owners of the smallest parcel of real prop-

erty had associated property rights that were infinite in scope, encompassing

ownership that extended further into the galaxy’s outer reaches or Earth’s

core than any human could ever hope to go.

104

Far from isolated musings,

Blackstone’s understanding of property had a sweeping effect on property

100. Cf. id. at 1089 (acknowledging the primacy of the critique of virtual property that

argues “there is no ‘there’ there”).

101. An additional, less widely cited property theory explicitly draws from underlying

entitlements as a means of recognizing new forms of property; it favors original possession as

the “source of ownership.” See Richard Epstein, Possession as the Root of Title, 13 G

. L.

. 1221, 1222 (1979). This encourages further organization of property to flow from preex-

isting property interests. See id. at 1241. This theory also supports recognizing rights in site-

specific AR as an extension of current rights to real property. Id.

102. 2 W

ILLIAM

LACKSTONE

, C

OMMENTARIES

*18.

103. This is short for “Cujus est solum ejus est usque ad coelum,” or “Whose is the soil,

his it is up to the sky.”

104. Cf. Bell and Parchomovsky, supra note 35, at 544 (“The Blackstonian bundle pre-

supposes impeccably demarcated parcels whose boundaries extend upwards to the heavens and

downwards to the depths of the earth, and bestows upon owners unbridled powers and privi-

leges to use, transfer, and even abuse land.”).

Fall 2017]

Property Rights in Augmented Reality 35

theory,

105

and was eventually fully incorporated into the common law.

106

This notably meant that the common law rejected an approach whereby

rights to property were only available to those who possessed the relevant

space.

107

Instead, the default approach was to recognize the inherent right of

property owners to claim and control certain “derivative” spaces linked to

their property, regardless of the accessibility of those spaces or the enforce-

ability of those rights.

108

The common law’s embrace of Blackstone’s ad coelum rule has obvious

implications for rights in AR. Just as the owner of real property cannot exer-

cise dominion over areas far above or below her land, so too would it prove

challenging for her to establish concrete control over AR linked to the prop-

erty’s GPS coordinates.

109

Yet in the same way that numerous property theo-

ries are willing to impute ownership over things and spaces associated with

certain pieces of property to the owner of the underlying right, so too does

the common law adopt this same intuition by ascribing ownership of the

heavens and depths to the surface owner. Applied to site-specific AR, the

logic of the common law points to the existence of rights that inhere in the

owner of the underlying land. Cases adopting and applying the ad coelum

rule thus serve as a powerful tool for courts and litigants keen on recogniz-

ing rights for real property owners in AR.

Of course, the ad coelum rule is no longer good law; owners of real

property cannot initiate a trespass action against any satellite, space shuttle,

or high-altitude 747 that briefly overshadows their property.

110

Yet while

courts and commentators have been quick to label the displacement of this

rule as a natural evolution of the common law or as an affirmative act of the

Supreme Court,

111

such characterizations are inaccurate. In United States v.

105. See, e.g., id. at 543 (“William Blackstone provided the dominant understanding of

property rights.”).

106. See, e.g., United States v. Causby, 328 U.S. 256, 260 (1946) (citing 2 W

ILLIAM

LACKSTONE

, C

OMMENTARIES

*18 (“It is ancient doctrine that at common law ownership of

the land extended to the periphery of the universe.”).

107. Cf. Thomas Merrill, Trespass, Nuisance, and the Costs of Determining Property

Rights, 14 J. L

EGAL

TUD

. 13, 36 (1985) (discussing a “possessor” approach to ownership of

columns of space over real property that “the common law did not tend to adopt”).

108. See, e.g., Smith v. New England Aircraft Co., 170 N.E. 385, 393 (Mass. 1930)

(quoting F

REDERICK

OLLOCK

, T

AW OF

ORTS

362 (13th ed. 1929)) (“It does not seem

possible on the principles of the common law to assign any reason why an entry above the

surface should not also be a trespass . . . .”).

109. But see Allen, supra note 83.

110. See Brown v. United States, 73 F.3d 1100, 1104 (Fed. Cir. 1996) (“With the advent

of human flight, and now world-wide aviation, a high altitude intrusion into an owner’s theo-

retical airspace that had no impact whatsoever on the surface property could not be

actionable.”).

111. See, e.g., Branning v. U.S., 654 F.2d 88, 97 (Ct. Cl. 1981) (“The Supreme Court

long ago put to rest the ancient common law doctrine that ownership of the land extends to the

periphery of the universe.”); Merrill, supra note 107, at 36 (“[T]he common law. . . instead

[adopted] an ad hoc exception for overflights.”).

36 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

Causby,

112

—the case universally cited as sounding the death knell for the ad

coelum rule,

113

the Court—far from eliminating landowners’ rights to air-

space sua sponte—avoided responsibility for its holding and stressed that its

actions were compelled by Congress. The opinion notably began by citing

not to common law doctrines but to the Air Commerce Act of 1926,

114

which

the Court observed granted the United States “complete and exclusive na-

tional sovereignty in the air space over this country.”

115

Only after so estab-

lishing that Congress had already divested property owners of their air rights

did the Court proceed to find that the ad coelum rule “has no place in the

modern world.”

116

Yet evidently not satisfied that its opening references to

Congress were sufficient, the Court immediately reemphasized in the fol-

lowing sentence that it was “Congress [that] declared” the air to be a “public

highway.”

117

Given the Court’s extreme reluctance to take ownership over

the ad coelum rule’s demise and its insistence that lawmakers had forced its

hand, it is more than conceivable that, absent congressional action, the

Causby Court might not have extinguished property owners’ rights to over-

head airspace.

The reasoning in Causby illustrates how courts today could find that,

absent legislation to the contrary, real property owners are broadly entitled

to rights over spaces associated with their property. What is more, the incon-

sistent legacy of Causby evinces how, even when Congress seeks to limit or

appropriate ownership over these related areas, the relevant real property

owners still retain certain fundamental rights. For instance, in Griggs v. Alle-

gheny County,

118

the Supreme Court found that flight routes that fully com-

plied with the Civil Aeronautics Administration’s regulations could still

infringe on subjacent property owners’ rights to such an extreme extent as to

be considered takings.

119

The Griggs Court’s ruling was later extended be-

yond that case’s somewhat atypical fact pattern—the relevant parcel of

property neighbored an active runway—by the Court of Claims in Branning

v. United States.

120

There, the actions of the government were once again

found to have effected a taking of the plaintiff’s property, notwithstanding

the fact that these actions took place above the 500-foot level at which the

federal government’s sovereignty purportedly began.

121

What is more, the

112. Causby, 328 U.S. 256.

113. See, e.g., Cheskov v. Port of Seattle, 348 P.2d 673, 676 (Wash. 1960) (en banc)

(branding Causby the “leading case” relating to the ad coelum rule).

114. Air Commerce Act of 1926, 49 U.S.C. § 171 (1926).

115. Causby, 328 U.S. at 260 (quoting 49 U.S.C. § 171 (1926)).

116. Id. at 261.

117. Id.

118. Griggs v. Allegheny Cty., 369 U.S. 84, 84 (1962).

119. See id. at 89.

120. Branning v. U.S., 654 F.2d 88, 88 (Ct. Cl. 1981).

121. See id. at 101–02.

Fall 2017]

Property Rights in Augmented Reality 37

court was so firm in its conviction that it volunteered that the fact pattern

before it amounted to a “classic statement of a taking situation.”

122

Collectively, these cases indicate that Congress can never fully divest

real property owners of all rights to affiliated property such as overhead

airspace. The special nature of “ad coelum areas” is only further confirmed

with reference to the test used in these cases; instead of requiring the denial

of “all economically beneficial or productive uses of the land” as demanded

in takings cases that do not feature a physical invasion,

123

Causby and its

progeny merely require a “diminution of the value of the [real] property”

caused by activity in the associated but appropriated space.

124

This markedly

different test hints at an understanding in the law that associated or deriva-

tive property is special, and that owners of the underlying property possess

certain inalienable rights. Moreover, nothing in these opinions suggest that

private actors would not be similarly constrained in their ability to use and

occupy this otherwise public property; just as a real property owner can pre-

vail on a takings claim based on flights in overhead but public airspace, so

too would such an owner seem to have a viable case for an injunction to

abate intrusions by private actors.

The ad coelum line of cases therefore demonstrates the law’s acceptance

of real property owners’ rights to spaces affiliated with their property. To-

gether, they reveal how the common law is amenable to a default state in

which property owners hold the right to control spaces in site-specific AR

connected to their property. And on a more foundational level, they suggest

that, even were Congress to affirmatively declare that such rights do not

exist, actors in such spaces are not free to operate without constraint, but

instead must respect the residuum rights of the real property owner or face

possible liability.

125

B. Cyberproperty Cases

The law’s willingness to recognize real property owners’ rights to asso-

ciated or derivative spaces would be of little consequence to AR if the law

foreclosed one’s ability to possess wholly intangible interests in cyberspace.

Yet as the “cyberproperty” line of cases reveals, the opposite is true. Indeed,

not only has the law proven willing to recognize these rights, in the process

122. Id. at 90 (emphasis added).

123. See Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1015 (1992).

124. Branning, 654 F.2d at 102. See also United States v. Causby, 328 U.S. 256, 266

(1946) (“[I]t is the character of the invasion, not the amount of damage resulting from it, so

long as the damage is substantial, that determines the question whether it is a taking.” (quoting

United States v. Cress, 243 U.S. 316, 328 (1917)) (internal quotation mark omitted)).

125. This conclusion notably lends support to the litigants currently seeking to enjoin the

presence of projections they allege encourage nuisances on their GPS coordinates. See Class

Action Complaint, supra note 17, at 15; Baldas supra note 17.

38 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

of so doing it has endorsed theories and rights that strongly support estab-

lishing robust property interests in AR.

Any accounting of cyberproperty likely needs to begin with Thrifty-Tel

v. Bezenek.

126

A California Court of Appeals in that case was confronted

with two teenagers who had gained access to a long distance telephone car-

rier’s network and subsequently overwhelmed it with a computer program

that generated over a thousand calls in the hopes of identifying an authoriza-

tion code for free long distance calls.

127

In ruling that Thrifty-Tel was enti-

tled to recovery, the court relied on a trespass to chattels theory, which holds

that recovery is appropriate where “an intentional interference with the pos-

session of personal property has proximately caused injury.”

128

Importantly,

for such a theory to apply in the first place, the court needed to find that

there existed a property interest in Thrifty-Tel’s “computerized switching

network.”

129

The court was persuaded that such an interest indeed existed,

130

and in so finding effectively opened the floodgates for related property

claims in cyberspace. Litigants quickly seized on this development, and

within a few years courts began accepting that accessing a website could

infringe on property rights.

131

While the extent to which the cyberproperty at issue in these early cases

was truly intangible is admittedly unclear—the courts made frequent refer-

ences to the corresponding “servers” and “computer systems”

132

—later de-

velopments eschewed the suggestion that digital property rights might hinge

on the existence of a server or system. For instance, while a federal court in

Utah that directly addressed the issue of property rights in websites charac-

terized websites as tangible property, it tied this conclusion not to the exis-

tence of a host server that is itself property, but rather to websites’ “physical

presence on [a] computer drive,” the fact that they “cause tangible effects on

computers,” and their ability to be “perceived by the senses.”

133

This trend

has been put on further display in the context of domain names. Despite

domain names’ wholly intangible nature, not only have courts held that they

are a form of property,

134

they have further found that domain names are

126. 54 Cal. Rptr. 2d 468 (Cal. Ct. App. 1996). See Greg Lastowka, Decoding Cybper-

property, 40 I

. L. R

. 23, 25 (2007) (“The first cyberproperty case is usually said to be

Thrifty-Tel, Inc. v. Bezenek.”).

127. Thrifty-Tel, 54 Cal. Rptr. 2d at 471.

128. Id. at 473.

129. Id. at 471.

130. Id. at 473 (“Thrifty-Tel pleaded and proved a claim for trespass to personal prop-

erty, and the defendants are properly liable under that label.”).

131. See, e.g., Oyster Software v. Forms Processing, 2011 WL 17366382 (N.D. Cal.

2001); eBay v. Bidder’s Edge, 100 F.Supp. 2d 1058 (N.D. Cal. 2000).

132. See, e.g., eBay, 100 F.Supp. 2d at 1064; Oyster Software, 2011 WL 17366382 at

*12.

133. Margae v. Clear Link Technologies, 620 F.Supp. 2d 1284, 1288 (D. Utah 2009).

134. See, e.g., Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2003).

Fall 2017]

Property Rights in Augmented Reality 39

subject to quasi in rem jurisdiction.

135

Indeed, in the process of so holding,

the Ninth Circuit likened domain names to the most elemental form of prop-

erty, real property, analogizing the registration of a domain name with “stak-

ing a claim to a plot of land at the title office.”

136

Such precedents and the reasoning supporting them point heavily in

favor of finding property rights in site-specific AR. Indeed, if anything, the

case for extending cyberproperty to encompass rights in AR is stronger than

the arguments used to support now-enshrined forms of cyberproperty. Per-

haps the most salient and ubiquitous critique of the cyberproperty cases is

that courts’ reflexive application of terms and concepts used in the real prop-

erty context to interests that have no physical expression is inappropriate and

dangerous.

137

Those who subscribe to this belief assert that, in the process of

applying trespass laws to computer systems or equating one’s use of a web-

site to presence in a physical store, courts “apply physical assumptions about

property in this new, abstract space,” and thereby risk creating “undesirable

private control of the previous commons-like Internet.”

138

Yet such concerns

apply with much less force—if they apply at all—to site-specific AR, which

directly correlates to physical spaces. Thus, not only are property interests in

this area capable of precise definition, but their finite nature neutralizes the

danger that privatizing this realm might lead more broadly to “the gradual

whittling away of the public domain within intellectual property.”

139

should therefore come as little surprise that interests in site-specific AR can

fit neatly into the test used by the Ninth Circuit to define new types of cyber-

property: they are “capable of precise definition. . . capable of exclusive

possession or control,” and putative owners possess the ability to “establish

a legitimate claim to exclusivity.”

140

In addition to the broader support advocates for property rights in site-

specific AR can derive from cyberproperty precedent in general, two spe-

cific trends in that area of the law apply with particular force to AR. The

first is cyberproperty’s acceptance that ownership of more traditional prop-

erty can generate rights in cyberspace. This feature of the law found its

clearest expression in cases concerning “cyber-squatters,” the “early

profiteers who bought up the Web addresses, or domain names, of well-

known trademarked brands.”

141

In adjudicating claims over “the ownership

135. See, e.g., Office Depot v. Zuccarini, 596 F.3d 696, 703 (9th Cir. 2010).

136. Kremen, 337 F.3d at 1030.

137. See generally Hunter, supra note 76, at 511–14.

138. Id. at 443, 446.

139. Id. at 446.

140. Kremen, 337 F.3d at 1030 (quoting G.S. Rasmussen & Assoc. v. Kalitta Flying

Serv., 958 F.2d 896, 903 (9th Cir. 1992)).

141. Steve Lohr, A New Battle is Beginning in Branding for the Web, N.Y. T

IMES

(Aug.

31, 2008), http://www.nytimes.com/2008/09/01/technology/01copyright.html?_r=1&adxnnl=1

&oref=slogin&ref=business&adxnnlx=1220321046-Lj44cXocy6crTcdH7Z7q8Q.

40 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

of . . . highly prized Internet address[es],”

142

courts consistently held for the

trademark holders, finding that their rights translated to and applied in

cyberspace.

143

Among the arguments buttressing these conclusions was a

fundamental concern with the very real effects refusing to extend the right to

company names into cyberspace could work on a company’s ability to de-

fine itself. In the words of the Ninth Circuit, any other holding would put

companies’ “name[s] and reputation at [the] mercy [of cybersquatters].”

144

The cybersquatting cases effectively parallel the ad coelum cases, but in

cyberspace; the courts in both lines of cases accepted that an underlying

property right included rights over special, related areas. Thus, in recogniz-

ing rights over site-specific AR that derive from underlying rights over real

property, courts would merely be following existing precedent related to de-

rivative rights in cyberspace. One central difference, of course, is that the

cybersquatting cases involved trademark claims, which are dictated by stat-

ute as opposed to common law.

145

Yet the reasoning behind those cases—

paralleling the personality theory—is fully applicable to site-specific AR.

146

Accordingly, just as property protection for trademark is needed in cyber-

space as a bulwark against the dilution or distortion of a company’s image,

so too is property protection for site-specific AR necessary to protect indi-

viduals’ ability to control, develop, and define their land and, by extension,

themselves.

Finally, the second specific trend in cyberproperty that supports ex-

tending rights over site-specific AR to real property owners is the develop-

ing movement to establish property rights in the virtual worlds of video

games. While certain games allow users to “own anything they create in the

game world,” they are under no legal obligation to do so and most actively

refuse to recognize such rights.

147

Nevertheless, commentators are increas-

ingly vocalizing arguments in favor of property rights in virtual worlds,

148

142. Intermatic v. Toeppen, 947 F.Supp. 1227, 1233 (N.D. Ill. 1996).

143. See, e.g., id. at 1241; Panavision International v. Toeppen, 141 F.3d 1316, 1327 (9th

Cir. 1998).

144. See Panavision, 141 F.3d at 1327; see also Intermatic, 947 F.Supp. at 1240 (“[T]he

most corrosive and irreparable harm attributable to trademark infringement is the inability of

the victim to control the nature and quality of the defendant’s goods.”) (quoting Ideal Indus-

tries, Inc. v. Gardner Bender, Inc., 612 F.2d 1018, 1026 (7th Cir.1979)).

145. See 15 U.S.C. § 1125 (1995).

146. See supra notes 39–76 and accompanying text.

147. See James Bonar-Bridges, Regulating Virtual Property with EULAS, 2016 W

. L.

. F

ORWARD

79, 80–86 (2016).

148. See generally id. at 88–89; Brett Burns, Level 85 Rogue: When Virtual Theft Merits

Criminal Penalties, 80 UMKC L. R

. 831 (2012). But see Christopher Cifrino, Virtual Prop-

erty, Virtual Rights: Why Contract Law, Not Property Law, Must Be the Governing Paradigm

in the Law of Virtual Worlds, 55 B.C. L. R

. 235, 237 (2014).

Fall 2017]

Property Rights in Augmented Reality 41

and at least one court has entertained the idea of their existence.

149

What is

more, numerous foreign jurisdictions have been actively expanding their

definitions of property to encompass these virtual interests. Thus, Great Brit-

ain, the Netherlands, South Korea, and China all currently regard the theft of

virtual property to be equivalent to the theft of real property.

150

These developments clearly remain very far removed from crystallizing

into a stable property regime for virtual worlds. Nevertheless, the mere exis-

tence of a slowly building movement for property rights in worlds that are

entirely virtual innately strengthens the claim for property rights in site-spe-

cific AR, which—unlike virtual reality—can be naturally divided into de-

fined and finite parcels. And whereas those seeking to defend property rights

in virtual worlds must endeavor around the unalterable fact that such worlds

can vanish at the will of the relevant server operator,

151

rights in site-specific

AR suffer from no such instability; real property owners’ rights to AR tran-

scend servers, existing whether the AR over their property is wholly empty

or filled with projections generated by an endless array of discrete servers

worldwide. In this way, the trend favoring property rights in virtual

worlds—like the larger body of cyberproperty law and the more dated ad

coelum doctrine—adds ultimately unignorable weight to the intuition that

real property owners’ rights ought to extend into AR.

IV. C

ONCLUSION

As AR technology inevitably continues to develop, proliferate, and ex-

pand in its applications, any corner of the world covered by the ever-ex-

panding cellular network might soon find its features overrun with digital

projections. While this technology can undoubtedly enhance our environ-

ments for the better and inspire people to connect with the world in entirely

new ways, the antipodal potential for such technology to digitally vandalize

locations or instigate trespassory conduct poses a legitimate threat to owners

of real property. However, due in large part to this technology’s intimate

connection to the physical world, crafting a regime of property rights in site-

specific AR would ultimately be a simple and straightforward exercise. And

as this Essay has emphasized, not only would such a regime help protect the

interests of real property holders and enhance social welfare, it would fit

comfortably within existing property law theory and precedent.

149. See Bragg v. Linden Research, 487 F.Supp. 2d 593, 612 (E.D. Penn. 2007) (denying

defendant’s motion to dismiss a claim arising from the allegedly unlawful confiscation of

virtual property in the virtual world known as “Second Life”).

150. See Burns, supra note 148, at 845–50.

151. See Fairfield, supra note 99, at 1098 (arguing that, while “[p]ulling the plug on a

virtual world certainly deprives the inhabitants of the value of their holdings,” it does so in no

greater fashion than bankruptcy deprives equity holders of the value of their stock, a univer-

sally accepted property right).

42 Michigan Telecommunications and Technology Law Review

[Vol. 24:17

That said, recognizing property rights in site-specific AR is merely the

first step in a larger process. As Professors Bell and Parchomovsky have

highlighted, a comprehensive property theory involves multiple related yet

distinct questions;

152

while this Essay has sought to comprehensively argue

that real property owners ought to have default legal rights in AR that are

good against the world, the exact dimensions of those rights and how they

ought to be enforced are beyond its scope. Nevertheless, it is worth noting

that such property rights would be relatively meaningless if courts proved

unwilling to hold that intangible affronts to those rights were actionable

without proof of physical damage. While this was the conclusion drawn with

respect to a trespass to chattels cyberproperty action before the California

Supreme Court in Intel Corp. v. Hamidi,

153

extending such a rule to AR

would eviscerate the underlying property right. Specifically, such a limita-

tion would deprive real property owners of the ability to remove offensive

yet intangible messages from their property and limit their remedies against

nuisance- or trespass-producing projections to piecemeal litigation aimed at

the physical fallout instead of the unwanted projection itself. Yet unlike the

property rights crusaders in cyberproperty cases like Hamidi—which nota-

bly produced two strong dissents calling for the expansion of California’s

common law

154

—those endeavoring for property rights in AR need not

struggle to craft creative and convincing analogies to physical situations or

invent new property rules to make their case; these parties can take solace in

the knowledge that their interests remain anchored to tangible spaces and

that their cause finds broad support in existing bodies of law.

155

Finally, as has been alluded to above, while such a regime would priva-

tize certain spaces that might otherwise be used for creative expression, this

is no reason to reflexively reject it. Apart from the already documented ben-

efits such a system would provide to owners of real property, it is worth

emphasizing that society has already struck a certain balance between public

and private spaces; the property rights described in this Essay would merely

extend that same balance into the zone of AR. If that balance proves inap-

152. Bell and Parchomovsky, supra note 35, at 538 (“[C]ontemporary scholarship clus-

ters around four questions: (1) which legal entitlements qualify for legal recognition as prop-

erty rights?; (2) against whom do the rights apply?; (3) what is the content of property

rights . . . ?; and (4) what should be the remedies for property right infringement?”).

153. See 71 P.3d 296, 309 (Cal. 2003) (“[U]nder California law, intangible intrusions on

land, including electromagnetic transmissions, are not actionable as trespasses. . . unless they

cause physical damage to real property.”).

154. See id. at 325 (Brown, J., dissenting) (opposing the opinion’s effective “den[ial] of

the “right to exclude” to property holders); id. at 326 (Mosk, J., dissenting) (distinguishing

“unauthorized intermeddling on a private, proprietary intranet” from “communicating in the

public ‘commons’ of the Internet”).

155. Indeed, given how closely tied AR is to physical spaces, the law here might borrow

from the law of nuisance, which readily recognizes intangible intrusions as forming a basis for

recovery.

Fall 2017]

Property Rights in Augmented Reality 43

propriate or unworkable, Congress could choose to restructure the rights

through legislation, or society as a whole could reject such rights on a more

fundamental level.

156

Yet until Congress, broader society, or some other vital

force so intervenes, the most prudent and legally consistent approach to AR

is to recognize and protect the rights of real property owners, ensuring that

they possess the ability to exclude from, control, and ultimately define their

digital spaces.

156. Cf. Joseph Singer, Property as the Law of Democracy, 63 D

UKE

L.J. 1287, 1304

(2014) (“Property law. . . also entails substantive choices about the type and scope of property

rights that a free and democratic society can recognize without violating its deepest values.”).