“Mine” is one of the first words babies learn. By the time we grow up, the idea of ownership seems natural, whether we’re buying a cup of coffee or a house. But who controls the space behind your airplane seat: you reclining or the squished laptop user behind? Why is plagiarism wrong but it’s OK to copy a recipe or a dress design? After a snowstorm, why does a chair in the street hold your parking space in Chicago but in New York you lose the space and the chair?
Join us as experts James Salzman and Michael Heller explain that the concept of ownership comes down to 6 simple stories.
Michael Heller and James Salzman are among the world’s leading authorities on ownership. Heller is the Lawrence A. Wien Professor of Real Estate Law at Columbia Law School. He is the author of “The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.” Salzman is the Donald Bren Distinguished Professor of Environmental Law, with joint appointments at the UCLA School of Law and the UCSB Bren School of Environmental Science & Management. He is the author of “Drinking Water: A History.”
Gabe Howard is an award-winning writer and speaker who lives with bipolar disorder. He is the author of the popular book, “Mental Illness is an Asshole and other Observations,” available from Amazon; signed copies are also available directly from the author.
Gabe makes his home in the suburbs of Columbus, Ohio. He lives with his supportive wife, Kendall, and a Miniature Schnauzer dog that he never wanted, but now can’t imagine life without.
To book Gabe for your next event or learn more about him, please visit gabehoward.com.
Producer’s Note: Please be mindful that this transcript has been computer generated and therefore may contain inaccuracies and grammar errors. Thank you.
Announcer: You’re listening to Inside Mental Health: A Psych Central Podcast where experts share experiences and the latest thinking on mental health and psychology. Here’s your host, Gabe Howard.
Gabe Howard: Hey, everyone, I’m your host Gabe Howard and calling into the show today we have Michael Heller and James Saltzman, who are among the world’s leading authorities on ownership. Their new book is called “Mine! How the Hidden Rules of Ownership Control Our Lives.” Michael, Jim, welcome to the show.
Michael Heller: Great to be with you, Gabe.
James Salzman: Thanks for having us.
Gabe Howard: Let’s start at the beginning, like the beginning of America, because one of the first legal things that we could own, like legally documented ownership, was land, and American land was divided up and given to Europeans from the colonists to the homesteaders. But it ignored Native Americans who were already there using the land and who were the first people to use the land. Now, this contradicts any sort of first come, first serve idea in my mind, because the Native Americans were absolutely first, but the Europeans didn’t see it that way. So when we talk about first come, first serve for ownership, who decides who is first? How did the colonists define first?
James Salzman: It’s a great question, Gabe. And it’s really it turns out to be one of the cases that all law students read in their first year property course. It was decided in a case called Johnson v McIntosh in the early 1800s. And the situation was you had one landowner who had gotten his property from the from the colony, from the state, and another landowner claiming the same piece of property who’d gotten it from the Native Americans. And the question was, who owns it? Right. So really, who is the better claim to the colony of the crown? The new government? Or the folks who were obviously were there first. And you’re right, first come first serve was the story they turned to. Property is all about competing stories. And so the court said, yes, the Native Americans were there, but they don’t count as being first because they did not make productive use of the land. And the court basically said in order to count as first for claiming land ownership, you have to do something that makes the land more valuable. So instead of, as they thought, treading lightly across the land, which the Indians actually weren’t doing. They were growing food as well. But the court basically said unless you are removing stones and building fences and doing rows of agriculture, unless essentially you are making New England look like old England, you don’t count.
James Salzman: One of the key things that comes out of this immediately with the beginning of our country is this notion that ownership is not self-defining. Both. Both claimants are saying, we were there first, Native Americans were saying we were physically there, first making use of the land. The court said maybe. But in our book, what counts is first is making productive use of the land. So we’re going to focus very much on the colonists and basically say you’ve got you’ve got a superior claim. Michael anything to add?
Michael Heller: But Jim’s got the key point that we want our listeners to really take away, which is that ownership is always about competing stories. And as you said, Gabe, the question is who gets to decide which story counts? And the early American settlement for land ownership in America, the stories that counted were the stories that judges and courts who were raised in a merchant and agricultural society. We got their stories. And those are the stories of America’s founding, the stories of a certain form of understanding of what counts as labor, certain understanding of what it means to be first. But those stories don’t come down from on high. Who owns the land in America is very much a choice that we’ve made. And it’s a choice that favored the settlers and was one that was really quite horrific for Native Americans who were already here.
Gabe Howard: In all of your research you say that there are six stories that give rise to ideas of ownership. Can you tell our listeners about those?
Michael Heller: This is one of the really incredible findings that we had in doing this book is that it turns out that there are only six simple stories that everyone uses to claim everything in the world. Let me make a concrete. So actually part of what motivated this book is both Jim and I are parents and, you know, playing with our kids in the playground. I have a very vivid image of my daughter holding on to a little shovel and saying, this is mine. I’m holding on to it. And my son saying, no, I had it first and they fought over the shovel and they were both saying, it’s mine. And what they were doing was using two of these six simple stories of ownership. So my daughter was saying, I had it first, first in time, first come, first served. Just like the Native Americans were with land. And my son was saying, no possession. Possession is 9/10 of the law. So when you hear kids on a playground shouting mine, mine, mine, which you hear all the time. Right. Mine is one of the first words that kids learn at the very earliest stages of their lives. And what they’re actually doing when they say mine is they are asserting one of those very basic stories. It’s mine because I was first. It’s mine because I possess it. It’s mine because I worked for it. Labor. So those three stories first, possession and labor are also the same stories, not just for kids on the playground and not just for land ownership in America, but for all the big questions about who gets what in today’s society.
James Salzman: To add on to, so we’ve got first in time, possession, labor. Another one is it’s mine because it’s part of me, self-ownership. Why can’t I sell my spleen? Why can I sell my hair? So it’s mine because it’s part of me. The fifth story is attachment. It’s mine because it’s attached to something that I own. That’s why I own the water underneath, the water and coal underneath the ground. That’s why I get angry when drones fly over my property. Because how much above my property do I own? And in the sixth story is it’s mine because I’m part of a group, I’m in a family, I’m in a community. And so it’s mine because of this group, this group association, this group affiliation. And as Michael said, what’s remarkable and one of the things that really sort of changes people when they read our book is you can look at any ownership conflict and be able to pick apart what are the stories that are really animating this conflict. It’s not just mine versus mine, it’s one story versus another. And sometimes it’s a battle over what’s the one story. So what is first in time mean when you’re talking about the early settlers?
Gabe Howard: Now, where do these stories come from? Because some of them directly contradict each other. Do people just have one story that they personally use all the time? Or do they switch back and forth depending on their personal circumstances?
James Salzman: They absolutely switched back and forth. And I do. And you do. And everyone does. We’re all born advocates. We all have this sort of hardwired urge to possess. And we will fall back on the story that basically favors what we want. And so, if you’re at the playground and you found this shovel just sitting down and you pick it up, you’re saying, Hey, baby, possession is nine tenths of the law. If, on the other hand, you were the person who put down the shovel for a second, turned around and look back and your shovel is gone, you are all in first come, first serve. And so we’re not consistent. There’s no there’s no single answer here. But one of the key points is that we’re all playing from the same playbook. We’re all using the same six stories. But we rely on different stories depending on the particular situation.
Michael Heller: One thing that’s been surprising to us is that these six stories, they are true everywhere in the world. This is not just some parochial, you know, Ohio story or New York story. This is true in every culture that we’re aware of. And we’ve Jim and I have both worked and taught all over the world and studied the property systems all over the world. In different cultures, you may have a different balance towards one story or another in different social contexts, but there’s no seventh story out there. And the key for your listeners is to be able to see that what story is being told. And often the story that’s being told is a story that disadvantages them. They prefer one story, someone else has another. And if you don’t see that this is really a storytelling battle, you tend to lose out on ownership conflicts.
Gabe Howard: It sounds like the average person is going to tell themselves whatever story moves the needle for them, whatever helps them along, or proves that they own it. That’s the story they’re telling themselves at the time.
Michael Heller: Let me give you a very concrete example, Gabe. So we’re talking sort of abstractly here, but ownership conflicts come up absolutely all the time, hundreds of times a day. So I was on an airplane actually over the weekend, two days ago. And many of us, you know, are on airplanes now and then. And when you sit down, the person in front of you leans their seat back into your lap. And the question that always arises for me is, who actually owns that wedge of space behind the seat, the person in front? Is it for them to recline or is it for the person behind to defend their knees and to use their laptop? And when Jim and I poll audiences on this question. Almost invariably audiences of older people, younger people, men, women, they always split about 50/50 in terms of favoring the person in front or the person behind. And what’s happening there is the real shock for your listeners when you say it’s got to be one or the other. The shock is that half the people out there disagree with you and what’s going on there and that very simple interaction can you lean your seat back is one of these hidden ownership stories. So the person in front is saying that wedge of space is controlled by the button on my seat. I press the button and I lean back. That wedge of space is attached to my seat. It’s mine and the person behind feels just as strongly.
Michael Heller: They say, No, I possess that space. I had it first. When the plane takes off, the seat is in its upright position and the person behind controls the space. So, they’re saying it’s mine because I had it first. It’s mine because I’m possessing it. The person in front is using the attachment story. Those are all perfectly good stories of ownership and what they lead to is us, you and me, the person in front and behind on the airplane getting really mad at each other, not knowing what to do. And the airlines, it turns out, count on that ambiguity. They’re using one of the most advanced tools of ownership design, which is strategic ambiguity. They’re not telling you whether you can lean back or not. And what most of us do, most of us are, well socialized to try to be polite, to try to work it out. And as a result, the anxiety of being on an airplane is something that we each personally experience when what’s really happening is that the airlines are using that ambiguity to sell that wedge of space twice on every seat, on every flight for me to recline and for you to use your laptop so they profit by ambiguity about ownership. But it’s not an accident. It is a design choice.
Gabe Howard: The two of you are among the world’s leading authorities on ownership. So I feel that I’m coming to the right place to ask this question. What’s your opinion on who owns the space behind the seat? Legally, if this problem had to be resolved and they came to the court of Jim and Michael. What are your thoughts on that? How would this have to be resolved? Because clearly, two people can’t own the same space.
James Salzman: Well, Gabe, first of all, let’s get a little respect here. It’s Justice Jim and Justice Michael.
Gabe Howard: [Laughter]
James Salzman: There actually is an answer to this, most airlines actually have a rule and the rule is you’re allowed to recline. But the key point to this story is they will never tell you that and they will never enforce it because then you get angry at the airlines. And the beauty of this strategic ambiguity that Michael was talking about is passengers get angry at each other rather than angry at the airline, which is really what they should be doing. But there’s a second point here that amplifies what Michael was saying, which is that 99.9 99% of ownership conflicts never go to court. It’s an aberrant case of ownership that actually goes to court, the vast majority of ownership conflicts we work out amongst ourselves. So, keeping the airline thing, who owns the armrest? You’re in a middle seat and you know what’s going on, is there there’s a sort of unspoken jostling that takes place or doesn’t take place, but that’s an ownership negotiation as well. All this is going on all the time. We’re swimming in ownership decisions all the time, right? Why is this mine and not yours? Why is that thing you call yours not mine? Those are basic, basic questions that any society has to address, and those are ownership questions.
Michael Heller: Here’s Justice Michael weighing in. And to solve to solve the Gabe dilemma, the Gabe conundrum of being leaned into, we can think about it as citizens. And one of the pieces that we can do as citizens is push back against this strategic ambiguity that airlines are doing. So, in fact, Congress ordered the FAA a couple of years ago to create minimum seat pitch, minimum distance. And the FAA hasn’t done it. They haven’t actually followed though, what Congress ordered them to do. So one step is you can you know, you can we as citizens can lobby to actually have the FAA do what it was told to do, which is to create more space in economy that would relieve your needs a little bit. Here’s actual news you can use at an individual level for your listeners and actually maybe for you, Gabe, as well. There was a study on the leaning back problem about informal ways to solve it, solving it just with communicating with the person in front of you. If you ask the person in front of you not to lean back, it doesn’t work so well. If you offer to pay them 20 bucks not to lean back, it doesn’t work so well. But if you offer to buy the person in front of you a drink or a snack about three quarters of the time they won’t lean back. They’ll take the drink or snack and they won’t lean back. And the reason is that what you’re doing there when you’re offering them a food or drink is you’re creating a sense of community, creating sympathy or empathy between you and the person in front. And that actually turns out to be remarkably effective at protecting your knees.
Gabe Howard: This somewhat reminds me of a study that I read in a in a business publication where it basically said, look, don’t give your employees a $100 holiday bonus. It angers them. You’re much better off taking them for a $50 meal or having a pizza party because even though it represents less money, they appreciate it more. Is that a concept of ownership?
Michael Heller: Absolutely. So much of ownership relies not on law. Right? This is the hardest part for us to get across to our law students. Law is overrated. So much of ownership is really rooted in these very fundamental psychological inclinations that people largely share. So this notion of creating community, of feeling cared for around scarce resources, of offering the pizza party instead of the gift certificate, is really valuable to people and taps into a very primitive notion of ownership. It’s the same reason, you know, you don’t write a check necessarily for all the Christmas gifts you want or for the holiday gifts you want to. Actually, the gift can be potentially more meaningful for people. The notion of the feeling of care around scarce resources is tremendously motivating, tremendously powerful, and it actually solves the leaning back into you problem when you’re flying.
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Gabe Howard: And we’re back with Michael Heller and James Salzman, authors of the book “Mine!: How Hidden Concepts of Ownership Control Our Lives.” I’m starting to think about this, this concept of tangible versus intangible. For example, there was a famous comedian that said if somebody bought a car and somebody said, Hey, do you want me to go steal you a car exactly like mine and give it to you for free? Everybody would be like, Oh, my God, no. Why? Why on earth would you do that? But if I bought a movie and I said, Hey, you want me to burn you a copy? People would be like, Oh, yeah, sure. And of course, we also have streaming, people sharing Netflix passwords and on and on and on. Why are people uncomfortable stealing physical things? But they’ll steal somebody’s product that’s virtual or nonphysical in nature and not give it a thought. And again, it’s important to remember these are the identical people.
Michael Heller: This is actually really cool. I think there’s actually different areas in the brain that where we sort of process physical, tangible stuff and our relationship to intangible stuff to ideas. There have been studies about sort of early child development that look at kids fighting over what they’re fighting over when they say. Mine, mine, mine. And almost invariably when you hear a kid shouting mine on a playground, they’re fighting over a swing or a shovel or some food. They’re never shouting mine over a joke or a story. Like the sense of mine doesn’t attach to intangible or intellectual property in small children. It develops differently and later. And that actually is true for us as adults, right? So people who would never in a million years shoplift the book have no hesitation about streaming a movie illegally. When Jim and I ask our students, how many of you are streaming HBO shows illegally using somebody else’s password? All of them. All of them raise their hands. When we ask them, how many of you know this is illegal? Half of them do. And they’re still streaming it illegally. And this is law students. It turns out that people are very comfortable stealing intellectual property.
James Salzman: And it marks something that I think is really, truly profound and I mean the term profound. Through almost all of human history, I mean, evolutionary history. We’ve always been concerned with owning something. And by that, I mean some thing, a clod of earth, a horseshoe, animal, whatever. In the 21st century, more and more sort of value is actually not in owning something, but it’s having access to a stream of ones and zeros. And so, for example, take your iPhone or your smartphone, which pretty much everyone has now, what do you actually own when you hold that in your hand? You actually own a plastic brick. What makes the smartphone smart, useful is the operating system. You don’t own that. You get access to it. Even the data on your phone is not yours. You don’t actually own that. And so we’re in the situation now where our brains think we own this physically, and it turns out legally we don’t. Right. There’s a study done that found about 80% of people who are polled thought that they owned an e-book or an iTunes just the same way they would own a record or a book and they don’t. Amazon, Apple, they have gone into people’s sort of digital libraries and taken, you know, removed things and legally they can do that. So there’s this huge disconnect right now where you don’t own what you think you own.
Gabe Howard: I think intellectually, especially younger people, we all know that because we all have this like end user license agreement or EULA that we all sign. But I’m remembering a very popular episode of South Park where no matter what they did, no matter what happened to the boys, they would never read the end user license agreement. Is this where we are as a society? Because sincerely, I, I guess I want to pose to both of you and your law students. Have you ever read one of these things and do you sign them anyways, even though you know that they are legally ambiguous at best?
Michael Heller: I have never read one of those agreements. I click through without a second’s pause. I don’t know any law professor who has actually read one of these things. They’re designed not to be readable, and yet they control an awful lot of your of what you do and don’t own out in the world. And Amazon knows that you’re not going to read them, as does Apple. And what that means that they can do is it means they can take your psychological intuition, your feeling that possession is 9/10 of the law, your knowledge that Amazon can’t come into your home and take a book off the shelf. They take that very deep intuition and when they translate it into online ownership, online, what they’ve done through the through the licensing agreement or that box that you click through is online ownership is actually 1/10 of the law. And if that gap that Jim was talking about between what you feel like you own and what you actually own, that creates a profit opportunity for Apple and Amazon, right? So they get an unearned premium on an extra profit on every download that represents the gap between what you feel that you own and what you actually own, which is different and less.
Gabe Howard: Jim and Michael, when I hear you talk, I’m beginning to think that, one, I don’t own anything. Two, my opinion of how I own it is largely determined on whether or not I want it or somebody else has it. And three, there really doesn’t seem to be any clear-cut answer to resolving any dispute that happens with things that, as I’ve mentioned before, we may or may not own that that seems like the conclusion of everything that we’ve just talked about, but that sounds like chaos. What am I missing or where am I wrong?
James Salzman: Yeah. So there’s something to what you’re saying. But the fact is that for many of our everyday activities, there actually are rules that we follow, whether they’re legal or not. Our point, though, is that many of these are contestable. So let me just give you another example. So you’re going to a concert and you get there early and you take eight programs and you put them across the row to save them. Do you control those seats? Right. And the answer, what do you control those seats depends in part on whether people respect them, under what circumstances they might respect. The auditorium is not full. They may not respect them if the auditorium is really full and really crowded. And so that that kind of ownership question is contested. Right. You’re making a claim. This actually transcends the law and they’re going to make a different claim, which is that putting a program in a seat doesn’t possess the seat. It’s not it doesn’t count as physical possession. And so, you’ve got sort of these informal rules that are contested and then you’ve got these other examples we talked about, Johnson v. McIntosh, where basically the courts are saying, we’re going to decide this and we’re going to basically say the Native Americans lose and the colonists win.
James Salzman: There’s a there’s a rule there. And the key thing you want to point out in that setting is that’s not ordained by God. That’s not a natural result. There was a competing story. There is a competing story, and sometimes we can revisit those. And so I’m not going to get into Indian law, but there are ways to revisit some of those decisions from years ago. Michael, how would you frame it?
Michael Heller: Well, I would say this. So, Gabe, the one version of the story is sort of a pessimistic one, which is really very much the opposite of our takeaway in the book and in our lives. You know, you go through your day not bumping into people. You manage to get across the street, you manage to get your coffee at the coffee shop. You manage to line up at the deli and get a sandwich. All of those are ownership conflicts where part of what it means to be a, well-socialized person is that you resolve them sort of automatically. And that’s true for the overwhelming bulk of resource conflicts.
Michael Heller: But the part of what Jim and I are hoping that your listeners can begin to be aware of is that behind each of those interactions, there are these competing stories, and sometimes it is the case that those stories are disadvantageous to you or harmful to society. And as you begin to see that those stories are out there, you begin to have more control in your own life. You can begin to tell a different story from the story that’s being told to you by Amazon over the over their buy now button or over Facebook when they claim your data or the story about you being squished in your seat and feeling like it’s your mistake, it’s somehow your problem when it’s not, not realizing that the airline deliberately created it for their profit. So, once you begin to see that these competing stories are out there, our hope is that each one of you, each one of us can be a more effective consumer and a more effective citizen because we can start to tell our own stories of ownership.
James Salzman: I think that was a better answer. I would cut my response.
Gabe Howard: [Laughter]
James Salzman: My answer was a Law Professor Response. Michael’s response was a more humane response.
Gabe Howard: I love that you talked about the pessimistic nature of not only myself, but of many people. You know, we hear about conflict and many of us think, uh oh, conflict is bad. I want to avoid it at all costs. And it sounds like conflict is being created for us. Michael, Jim, thank you so much for being here. And to our listeners. Check out their book. It is called “Mine! How the Hidden Rules of Ownership Control Our Lives.” You can get it on Amazon because everything is there or wherever fine books are sold. Also, head over to their website, MineTheBook.com, and check that out. Jim. Michael, thank you again for being on the show.
James Salzman: Thanks. This is really fun.
Michael Heller: Thanks so much, Gabe.
Gabe Howard: Well, you are both very, very welcome. And a big thank you to our listeners. My name is Gabe Howard and I am the author of “Mental Illness Is an Asshole and Other Observations.” I’m also an award-winning public speaker who could be available for your next event. The book is on Amazon, or you can grab a signed copy with free show swag, or learn more about me by heading to my website, gabehoward.com. Wherever you downloaded this episode, please follow or subscribe to the show, it is absolutely free. And hey, do me a favor, recommend the show to a friend, family member or colleague. It is how we grow. I will see everybody next Thursday on Inside Mental Health.
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