One of my favorite books about the absurdities of property law is Slide Mountain, or the Folly of Owning Nature, by Theodore Steinberg. Steinberg took the name of his book from a Mark Twain short story of the same name, which describes a hilarious legal dispute that occurs when a large chunk of a mountain suddenly breaks loose and falls thousands of feet below, engulfing a farm. The vexing question presented to a befuddled judge was, Who owns the farm?
[inline:1]The point of the story – and of similar tales told by Steinberg about contested property claims over an always-shifting nature – is the socially constructed nature of property law, which inevitably leads to ridiculous situations. “Owning nature” is an arrogant human conceit that Steinberg says “has, in effect, helped us to re-imagine and reinvent what we understand to be the real world.”
Which brings us to the raging dispute over who owns the “apple.”
For years, the record label founded by The Beatles, Apple Corps, was engaged in an ongoing legal squabble with Apple Computer over use of the Apple name and logo. Yes, the exact logos were different, but the name was the same, and so was the general image of an apple. In 1991, as reported by today’s Wall Street Journal. the two companies devised an arrangement whereby the Beatles’ Apple Corps could use the Apple name and logo for creating music regardless of whether it is in “tangible or intangible form.” For its part, Apple Computer could sell computers and software used to play or broadcast music, but it could not publish music CDs using the Apple name and logo. So far, so good.
But the steady march of digital technology has now brought this agreement into question. Apple Computer has gotten into the music business via its iPod, the source for nearly $3 billion of the company’s $5.75 billion in revenues. It also sells music online through its popular iTunes service. Apple Corps is charging that Apple Computer has breached the agreement by becoming a music company in its own right.
It’s Slide Mountain all over again! Technology has pushed a big chunk of the music mountain onto another person’s farm, forcing judges to make impossible distinctions. In the Internet world, can we really draw a clear line between creating and distributing music? Whose farm is it? Apple Corps wants Apple Computer to stop using its Apple logo on the iTunes program lest consumers be deceived into thinking that they are buying music from Apple Corps.
Personally, I think lawyers for Isaac Newton, New York City (“The Big Apple”), the singer Fiona Apple, or Adam (in the Garden of Eden) should weigh in and say, “Uh, guys…. I was here first.”