Space Law

Extending the Earth’s Life to Make It Off-World: Will Intellectual Property Law Allow Climate Change to Go Unchecked?

Daniel Green, MJLST Staffer

The National Aeronautics and Space Administration (NASA) recently discovered seven Earth-like planets. Three of these planets are even located the specific distance from the star, Trappist-1, in order to be considered in the proposed “Goldilocks zone” necessary to sustain life, thereby bringing about the conversation of whether a great migration for humanity is in order such as seen in movies of the last ten years such as Passengers, The Martian, Interstellar, even Wall-E. Even Elon Musk and Stephen Hawking have made statements that the human race needs to leave earth before the next extinction level event occurs. The possibility that these planets may be inhabitable presents some hope for a future to inhabit other planets.

Sadly, these planets are forty light years away (or 235 trillion miles). Although relatively near to Earth in astronomical terms, this fact means that there exists no possibility of reaching such a planet in a reasonable time with present technology despite the fact that NASA is increasing funding and creating institutes for such off worldly possibilities. As such, humankind needs to look inward to extend the life of our own planet in order to survive long enough to even consider such an exodus.

Admittedly, humanity faces many obstacles in its quest to survive long enough to reach other planets. One of the largest and direst is that of climate change. Specifically, the rise in the temperature of the Earth needs to be kept in check to keep it within bounds of the two-degree Celsius goal before 2100 C.E. Fortunately, technologies are well on the way of development to combat this threat. One of the most promising of these new technologies is that of solar climate engineering.

Solar climate engineering, also known as solar radiation management, is, essentially, a way to make the planet more reflective in order to block sunlight and thereby deter the increase in temperature caused by greenhouse gases. Though promising, Reynolds, Contreras, & Sarnoff predict that this new technology may be greatly hindered by intellectual property law in Solar Climate Engineering and Intellectual Property: Toward a Research Commons.

Since solar climate engineering is a relatively new scientific advancement, it can be greatly improved by the sharing of ideas. However, the intellectual property laws run directly contrary to this, begging the question as to why would anyone want to hinder technology so vital to the Earth’s survival. Well the answer lies in numerous reasons including the following three:

  • Patent “thickets” and the development of an “anti-commons”: This problem occurs when too many items in the same technological field are patented. This makes patents and innovations extremely difficult to patent around. As such, it causes scientific advancement to halt since patented technologies cannot be built upon or improved.
  • Relationship to trade secrets: Private entities that have financial interests in funding research may refuse to share advancements in order to protect the edge it gives them in the market.
  • Technological lock in: Broad patents at the beginning of research may force others to rely on technologies within the scope of the patent when working on future research and development. Such actions may ingrain a certain technology into society even though a better alternative may be available but not adopted.

There is no need to despair yet though since several steps can be taken to combat barriers to the advancement of solar climate engineering and promote communal technological advancement such as:

  • State interventions: Government can step in so as to ensure that intellectual property law does not hinder needed advancements for the good of humanity. They can do this in numerous action such as legislative and administrative actions, march-in rights, compulsory licensing, and asserting a control over funding.
  • Patent pools and pledges: Patent pools allow others to use one’s patents in development with the creation of an agreement to split the proceeds. Similarly, patent pledges, similarly, limit the enforcement of a patent holder by a promise in the form of a legally binding commitment. Though patent pools have more limitations legally, both of these incentivize the concept of sharing technology and furthering advancement.
  • Data commons: Government procurement and research funding can promote systematic data sharing in order to develop a broadly accessibly repository as a commons. Such methods ideally promote rapid scientific advancement by broadening the use and accessibility of each advancement through the discouragement of patents.

Providing that intellectual property laws do not stand in the way, humanity may very well have taken its first steps in extending its time to develop further technologies to, someday, live under the alien rays of Trappist-1.

EmDrives: The End of Newtonian Physics?

Peter Selness, MJLST Staffer

The EmDrive has been the center of much controversy over the past decade, and rightfully so.  But what exactly is an EmDrive, and why does it have the scientific community at odds with one another over the underlying science behind it?  The EmDrive is a type of propulsion system that was first designed by Roger Shawyer in 2001.  Essentially, it is a RF resonant cavity thruster that relies on electro magnetic radiation projected into the cavity of a cone to produce thrust.

The EmDrive was met with no small amount of criticism when first proposed because it is what is known as a propellantless propulsion system in that it consumes no fuel when producing thrust.  Not only does it consume no fuel, however, it also appears to only produce force in one direction, thus contradicting Newton’s third law of “for every action there is an equal and opposite reaction.”  Such a proposition has been compared to standing on the deck of a sailboat and pushing on the mast to propel it across a lake, or the old adage of “pulling yourself up by your bootstraps.”  The implications of such a device means that our understanding of physics as it relates to Newton’s third law (which has been relied upon for centuries) is either not entirely understood yet by humanity, or is completely wrong; which is largely why the EmDrive has received such criticism from the scientific community.

And yet, there are multiple confirmed reports of EmDrive testing resulting in this unexplainable thrust that have arisen independently from Roger Shawyer.  Even NASA conducted testing on EmDrives in 2014 and reported measuring a thrust produced by the device.  A similar experiment was then carried out by NASA again in 2015 to correct for some reported errors from the first test, but thrust was surprisingly recorded again despite the corrections.  Also, an EmDrive paper has finally been accepted by peer review by the American Institute of Aeronautics and Astronautics, granting the technology more authority from critics.

Interestingly enough, legal developments have also granted significant legitimacy to the EmDrive.  Roger Shawyer currently has three patents granted on the EmDrive, while two more are still going through the patent process.  Being granted three patents from the UK IP Office means that the physics behind the EmDrive has been thoroughly examined and was found to not violate the laws of physics, as such a violation would inevitably have lead to the patent applications being denied.  Furthermore, Shawyer’s most recent patent, as of October 12th, was filed more than 18 months ago, allowing the patent office to disclose the information contained to the public.  Such a public disclosure should in turn allow for greater scrutiny of Shawyer’s more recent efforts in developing the EmDrive.

The implications of the EmDrive being accepted as a legitimate technology are immense.  First of all, a working propellantless propulsion system would allow for future space craft to be much lighter and cheaper without requiring large amounts of rocket fuel for each take off.  It also would allow for much faster space travel, possibly allowing humans to reach the outer limits of our solar system in a matter of years and Mars within only a few months.  Furthermore, outside its space propulsion systems applications, there’s really no limit to what it may be applied to.

Despite passing several hurdles in recent years, however, the EmDrive is still a long way from leading us to interstellar travel.  The testing conducted by NASA, while showing positive results, also recorded thrust of a force just slightly higher than the magnitude of error for the experiment.  Also, while this positive result allowed it to pass peer review, that does not necessarily mean that the technology is sound and will not later be found to have flaws.  In all likelihood, the chances of a new technology being discovered that, for the first time, violates the laws of physics as we have known them for hundreds of years is a far less likely result than finding some sort of experimental error in the technology.  But maybe, just maybe, this could be the end of Newtonian physics as we know it.

Westward (And Then Some) Expansion: One Theory of Property Rights on the Moon and Mars

Jordan Rude, MJLST Staffer

Recently a friend of mine received, for his birthday, a deed to one acre of land on Mars. That’s right—he is the proud owner of property located approximately 34 million miles from Earth. This is possible thanks to the efforts of various (and often interconnected) websites such as Buy Mars, Buy Planet Mars, Lunar Registry, and Lunar Land. While selling extraterrestrial property is not a recent development (see here and here), and there does not appear to be any recent lawsuits regarding this practice, these methods still deserve scrutiny. With the rapid advancement of technology in recent decades and increasing participation by private companies in space programs (SpaceX recently tested a Mars-capable rocket), human settlement on the Moon and Mars is becoming a possibility (albeit a distant one) within our lifetimes. At that point, property ownership will become an important and possibly contentious issue. For the millions of people who have bought land on the Moon and Mars, the question of whether their claims will be recognized in such a situation is a not insignificant one.

Some of these websites claim to have legal standing for their ownership of property on Mars. Consider Buy Mars (owned by Lunar Land). Under the heading “Lunar Land’s Legal Right To Offer Planet Mars Land,” the site makes reference to the U.N. Outer Space Treaty of 1967 as well as the tradition “dating back to early U.S. settlers” of staking a claim on surveyed land through the U.S. Office of Claim Registries. The Outer Space Treaty has been previously discussed by this blog (in a different context). Suffice it to say that this treaty prohibits countries from claiming ownership of land on Mars and other extraterrestrial property, but says nothing about individuals or corporations. Thus, the argument would be that Buy Mars, because it is not a sovereign nation, is not subject to the treaty specifically prohibiting claims of ownership on Mars.

Beyond the lack of a direct prohibition, Buy Mars also claims historical precedent as an affirmative justification. This reference to historical precedent is problematic for two reasons: first, the U.S. Office of Claim Registries does not exist, and likely never existed; and second, this is not an accurate statement of the process by which the West was settled. In fact, the federal government sold the land—first as townships and other large plots, and later in smaller, more affordable plots, before finally offering land for free under the Homestead Act of 1862 (see Michael C. Blumm & Kara Tebeau, Antimonopoly in American Public Land Law, 28 Geo. Envtl. L. Rev. 155, 165–71 (Winter 2016)). That is, the federal government owned the land it sold to speculators and other settlers (though this ownership came more or less from the government declaring it to be so, not dissimilar to what Buy Mars has done). So, because the U.S. government does not own land on Mars that it could sell to Buy Mars (to then sell to us), on its face the claimed historical precedent is not in fact proof of the legality of the process.

However, setting aside the flaws in Buy Mars’ formulation of the argument, let’s assume that the principles of westward expansion can be applied to property on Mars—would this type of claim survive a legal challenge?

Most likely it would not. Construing the westward expansion analogy narrowly, the U.S. government would have to first own land on Mars and then distribute it to corporations like Lunar Land or individuals. This is clearly prohibited by the Outer Space Treaty. That being said, if a company like SpaceX lands on Mars, the Outer Space Treaty would potentially not restrict its ability to claim land. At that point, it is unclear what the legal policies governing ownership would be. In that situation, a process loosely similar to westward expansion could be utilized, wherein a larger entity (in this case a large company) distributes land to newcomers. The key difference between the Buy Mars argument and SpaceX landing on Mars would be the latter company’s physical presence on the planet—an important aspect of making such property claims and the most likely way to get around the Outer Space Treaty. This could be extremely lucrative for SpaceX but problematic for those who have already purchased land on Mars. Ultimately, the websites currently offering land on the Moon or Mars do not have legal standing to do so, and any person who bought such land is unlikely to find legal protections should the need arise. The law in this field is very uncertain, if it exists at all, and the day may come where a true answer is needed.

Of course, the legal implications of this process should not deter you from investing in extraterrestrial property for the fun of it. My friend’s deed comes from Buy Planet Mars, whose website makes quite clear, in the FAQ section, that the deed is “a novel gift and for entertainment purposes only.”

Geostationary Earth Orbit: Property for the Space Age

Ian Blodger, MJLST Note & Comment Editor

The past several years have seen great advances in space based technology and exploration. Most recently, scientists used the LIGO to prove the existence of gravitational waves. While the two detectors used to make this discovery were located in the United States, scientists have plans to deploy more advanced and precise measuring tools in space, likely in Geostationary Earth Orbit (GEO). GEO’s unique properties make it a perfect choice for this and similar satellite technology. Essentially, GEO is an orbital path around Earth where satellites remain in a fixed position above a specific point on Earth. This aspect of GEO makes it easier for the satellite to communicate with Earth based operations because the satellite operator does not need tracking technology to follow the satellite, but can simply build a stationary receiver. One additional result of GEO is that satellites that enter this orbital path remain there forever unless they are pushed out of orbit somehow. This is distinct from satellites in Low Earth Orbit (LEO) where satellites are not fixed above one point on Earth and remain for only a few years. This gives GEO satellites an additional advantage of reducing costs over the long term because operators do not need to replace them with the same frequency as LEO satellites. With the special conditions and long term cost savings of GEO, it is no wonder that more and more satellite operators and manufacturers are interested in placing a satellite in GEO.

One issue that will become more important as satellite operators continue to utilize GEO’s special attributes is the issue of property rights. Currently, satellite operators who place a satellite in GEO have no property right over that orbital position. In my Note “Reclassifying Geostationary Earth Orbit as Private Property: Why Natural Law and Utilitarian Theories of Property Demand Privatization,” recently published in Volume 17 of the University of Minnesota Journal of Law Science & Technology, I argue that this lack of a defined property right is both contrary to the underlying theoretical assumptions of various space treaties, and that granting a property right would be a good idea from a utilitarian perspective.

Allowing individuals to obtain property rights over a region of space makes sense from a natural law perspective. The various space treaties cite natural law for the proposition that an individual cannot own space, likening the vast emptiness to the sea. Under traditional natural law theory, the sea is not subject to homesteading and other means of property acquisition because it is so large and is not capable of being contained. However, Grotius, the natural law philosopher most responsible for this theory argued that when an area of the sea was slightly separated and could be wholly controlled, then property rights could exist.

While space generally is more like the uncontrollable sea, GEO is more akin to small inlets capable of control. First, GEO only comprises a small area of space; if satellites are too close to Earth or too far, they will not maintain their synchronicity with the planet’s rotation. Second, objects placed in this orbit will remain in a fixed position relative to the Earth. This is different than a ship on top of the ocean that moves with the waves and tides relative to shore. Finally, individuals who place satellites in orbit expend large amounts of money and energy to do so, and therefore meet the labor requirement expressed by both Grotius and Locke’s theories of property.

Granting property rights over certain portions of GEO makes sense from a utilitarian approach as well. This approach to property looks to see whether leaving things in common causes more harm than benefits. In this case, the tragedy of the commons has caused large costs and dangers that could be rectified by allowing GEO property rights. First, without property rights, individuals have little incentive to ensure their satellites leave orbit after failure. Under the current approach to GEO, satellite operators have little incentive to move their satellites to a graveyard orbit following failure because they can obtain another, similar, GEO position and do not have to worry about selling the inhabited position at a loss. With property rights over these positions, there would be a great incentive to move the satellite to a graveyard orbit to secure the best price for the position. Second, because no satellite operator has a property right which is harmed by space debris in the area, manufacturers create a race to the bottom in terms of quality parts, which in turn results in malfunctions and potentially more debris in the area. This leads to debris defense costs, such as special plating to deflect debris, that add up over the long term. Thus, a utilitarian approach to property yields the same result as the natural law: satellite operators should obtain a property right over GEO.

This is an interesting and fast moving area of law, and the decisions we make now can have great impacts on the future of space operations, especially considering debris in GEO will remain there forever.

Name that Star

Quang Trang, MJLST Staffer

For space lovers out there, the opportunity to name a star after a loved one sounds like a nice romantic gift for Valentine’s Day. The issue of whether this is actually allowed is somewhere between yes and no.

The main authority in naming astronomical objects is the International Astronomical Union (IAU). The goal of the IAU when formed in 1919 is to “to promote and safeguard the science of astronomy in all of its aspect through international cooperation.” Part of the IAU’s authority in its scientific mission promoting and safeguarding astronomy is the duty of being “the arbiter of planetary and satellite nomenclature.” In normal English, the IAU is the organization that decided Pluto does not qualify to be a planet.

Although the IAU is the leading authority in astronomical nomenclature, the organization still refuses to commercialize outer space by selling the rights to name space objects, such as stars. Due to the IAU being an international scientific organization, it does not have the authority nor the interest in outlawing such a practice. There are many services that would allow you to pick an unregistered star and name it for a fee. However, these multiple services are unrelated and have different databases. Essentially, a star you named with one service may be already be registered under a different name with a different service. Prominent star-naming services such as the International Star Registry are aware of its unofficial status. Rocky Mosele of ISR said “I think people are OK that it’s not official. I’m sure of it. I know because customers call again and again and again.” The ISR’s claims to not mislead any of its customers because it never once claimed to be official.

With each registration costing as much as fifty dollars, one might ask why the IAU does not participate in such a business. The organization would be an industry leader with the ability to give these registered names official status. The proceeds could be used to fund various projects. After receiving many requests to from private individuals to name stars, the IAU explains its policy to stay out of such an enterprise: Thus like true love and many other of the best things in human life, the beauty of the night sky is not for sale, but is free for all to enjoy.

Marooned on Mars: A Legal Look at Space Piracy

Tim Joyce, MJLST Staffer

Trending on the LawSciBlog’s recent foray into the intersection of law & pop culture, this week our intrepid Staffer corps fact-checks the legal accuracy of certain claims made in Andy Weir’s The Martian. With apologies to the many quality primetime law-connected dramas out there – such as How to Get Away with Murder, Scandal, and The Good Wife (note all the strong female protagonists: go Hollywood!) – this is a science & technology blawg. I will thus attempt to constrain my meanderings to science-related law topics in this book/film.

You may already be familiar with the premise of Hollywood’s most recent riff on the tried and true “We must rescue Matt Damon” formula: an American astronaut with one of the first manned missions to Mars is accidentally left behind during an emergency evacuation. With only his superior botany skills and a can-do attitude, he is forced to “science the s@*t” out of his resources, MacGuyver-style, to avoid starving to death before the rescue mission arrives. Along the way he has all kinds of time alone with his thoughts, and the audience is treated to some hilarious, if occasionally profane, musings.

Author Andy Weir wrote the book as a compilation of various thought experiments he had been entertaining for years. He wanted to know what an actual manned mission to Mars might look like, and what kind of problems might pop up. Although smarter people than I have probed the book’s relative scientific accuracy (hyperlink warning: spoilers inside!), there is one short chapter that explores some legal complications of being the only colonist on an unclaimed planet. Here’s how Matt Damon’s character concludes that he is a “space pirate” (mild spoilers ahead):

  1. An international treaty says: no one can lay claim to anything not on the Earth’s surface.
  2. Another treaty says: if you’re not in any country’s territory then maritime law applies.
  3. The NASA living enclosure and rover are NASA property, and inside American non-military property American law applies.
  4. THEREFORE: Martian land is governed by maritime law; any step outside of his living enclosure or rover vehicle is a journey into “international waters.”
  5. He intends to travel across Martian soil to take control of another NASA vessel.
  6. He has not been able to communicate with NASA to get explicit permission to commandeer this other vessel. (Plot point: communication capability is a major reason he must travel to said ship.)
  7. THEREFORE: By travelling across “international waters” with the intent to commandeer an American non-military vehicle, but without explicit permission, he intends to engage in piracy.

Ergo: space pirate. (If you’re curious, this all happens in the short “Sol 381” chapter.) The character seems to think this is a pretty sweet outcome, but, is he right about the law?

By and large, the answer is yes.

Article II of the Outer Space Treaty guarantees that, “[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” So, Mars’ surface cannot be claimed by any sovereign party to the treaty. For an exploration of the Treaty’s rationale, see “the common heritage of mankind.”

Further, Article VIII of the Treaty guarantees American jurisdiction over American objects launched into space. So, the living enclosure and rover are definitely under active American jurisdiction on Mars. By extension, anything outside those Earth-originated environments would be “international waters.”

Here’s where it gets tricky.

The other American vessel should still be under American jurisdiction. A trusting reader might assume that NASA would allow its own astronaut to commandeer its other vessel, but we all know what happens when you assume. It is at least plausible that the astronaut had not been given explicit permission to use other NASA spacecraft’s communication devices. Under Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS), which arguably should apply to dispute in outer space, a private person seeking to plunder a ship on the high seas commits an act of piracy. What is unclear is whether an American can be a pirate with regard to NASA property. Weir hurdles this deftly by claiming the astronaut’s botanical cultivation of Martian soil makes him a planetary colonist and the very first human Martian (hence, the book’s title).

That is basically the situation Matt Damon’s character finds himself in, more or less. Certainly, any other astronaut seeking to prevent him from taking control of the other spaceship would view him as a pirate! On the other hand, the assumption that NASA wouldn’t give advance permission for their astronauts to use other Mars-stationed property stretches the limits of believability a bit. And, even if he technically qualifies as a space pirate while travelling to the other vessel, once he gets there and asks NASA politely, he would probably lose technical pirate status.

Is any of this important?

Maybe. Though the current space race isn’t furiously driven like the furious Cold War days, space is becoming ever more crowded as more nations and even private companies enter the game. Even Andy Weir himself admits in a website Q&A that advances in technology since the 60’s make it less justifiable to risk human life to gain scientific data that robots can gather just as easily. It seems like the focus of space law, for the time being, will be a little closer to home. For an in-depth examination of some legal issues surrounding allocation of geostationary orbits, see MJLST Editor Ian Blodger’s article in the upcoming Winter 2016 issue of MJLST.
tl;dr: The legal issue of space piracy may all be just a nerdy thought experiment for the moment. If nothing else, this article should provide you with an interesting conversation starter at the holidays, and a perfect way to change the subject when your non-lawyer relatives start pontificating about the real meaning of the Second Amendment. For now: live long and prosper.