Could NASA use the Federal Aviation Administration’s policy review to stop a launch?
One of the problems I have with reading near-space, near-future science fiction is all that poetic license. A poet’s license is different than a launch license. To get a launch license you have to show the FAA that you satisfy its safety, environmental, policy, payload, and financial responsibility requirements. To get a poet’s license, as best as I can tell, you just grab it and take it. John Varley may have broken my heart by failing to dis properly the FAA’s space law, but Victor Koman drove me crazy by getting really close and then twisting the law so hard I had to go look it up.
In Kings of the High Frontier, which was published in the 1990’s, Koman tells of an imaginary second Shuttle disaster leading to the rise of commercial companies to compete against the monolith that is NASA. We follow the development of a host of different entrepreneurs, from students at NYU to billionaires, from space planes to rotary rockets, as they race to beat a treaty deadline which would place all space launch capability in the hands of the United Nations. The Department of Defense doesn’t want the entrepreneurs to make it. NASA doesn’t want the upstarts to show the agency up. And, most malevolently of all, the architect of the new treaty and head of a space advocacy group who wants space to stay tidy and well-planned, even if it means human space travel is always thirty years away, doesn’t want them to succeed. In short, this is the fictional companion—or precursor—to Greg Klerkx’s Lost in Space: The Fall of NASA.
That’s all well and good and makes for a fine plot. Additionally, Mr. Koman did a tremendous amount of research. The first portion of the book lovingly geeks out over each rocket design and the secrecy in which the launch vehicles are constructed. (I like to use launching from Central Park or Continue reading
Mackey Chandler’s short story Adverse Possession deals with a confrontation between an official ship from Earth reaching Mars and finding, much to the consternation of all, that this particular celestial body is already inhabited. The story is set in the near future, close enough that readers who are space lawyers may feel compelled to assess the situation in light of current law. SPOILER ALERT (this is where you pause and go read the charming and entertaining story–it’s a fun, quick read. I’ll wait): What threw me was that Mars was not inhabited by Heinlein’s fundamentally scary Martians, or by Edgar Rice Burrough’s Deja Thoris and Tars Tarkas, but by people from Earth.
How the heck did people of Earth get to Mars with no one knowing about them? Under current law space flight participants have to sign reciprocal waivers of claims with the U.S. Government and, as of 2015, with the launch operator. The launch operator has to get an FAA license to get off Earth, and that process involves saying where you are going. (Sure, these laws may not survive the future, but laws seem hard to repeal, even those that are designed to sunset. How many times have the so-called “indemnification” provisions of the Commercial Space Launch Act been extended? A lot.) It seems that someone at the FAA would know that people had gone to Mars and who they were, and might mention it in passing during an inter-agency meeting or three. We know for sure the agency would have issued a press release. Had the secret travelers availed themselves of the regulatory provisions protecting proprietary information? Even though I have said SPOILER ALERT I will not give away the answer. I will only say it’s not legal. Any comments to this post should be appropriately cited.
About the Books Tab: I like science fiction. I like space law. The Book Tab contains science fiction books or short stories I come across that touch upon some element of space law. When I find an issue of space law in near future science fiction I will mention the book and the issue, and you can find links in the post and at the Book Tab. The Book Tab also contains my books, of course, even though two of them are purest space opera with not an ounce of space law to them. (That’s because it’s my blog.) The other two are bourgeois, legal science fiction full of space law and policy wonkery. They’re the ones without a space marine on the cover.
This is interesting. The link is to a Federal Register notice where NASA gives notice of its intent to grant an exclusive license for an invention for a multi-Gb/s laser communications terminal for mini-spacecraft. The notice provides interested persons 15 days to object:
The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements regarding the licensing of federally owned inventions as set forth in the Bayh-Dole Act and implementing regulations. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated exclusive license.
There are a couple of interesting points. The first is that NASA says it won’t make any objections public, and that “to the extent permitted by law,” it won’t release the objections under the Freedom of Information Act. Potential objectors should bear in mind that FOIA is a federal statute, and that any grounds for withholding an objection from public disclosure would have to fall within one of FOIA’s enumerated exemptions.
The second interesting point is more frivolous and may be mostly interesting to me. When I wrote my bourgeois, legal science fiction novel, The Sky Suspended, the plot turned on a patent and the federal licensing of an interstellar star drive created by one company but licensed to its competitor. I based the novel’s plot on this statute, specifically paragraph (f) of 42 U.S.C. 2457, but the NASA notice is grounded in this one, 35 U.S.C. 207. Readers of the novel might point out that I clearly didn’t know about this objection process. They would be right, but I would explain that the book is alternate future history, somewhat like Michael Flynn’s books.
Anyway, anyone who wants to object to the exclusive license or file his or her own application has 15 days in which to do so.
UPDATE on May 8: Here’s something similar from the Department of the Navy, offering to license assigned patents.
Sometimes when you are reading science fiction you find that the story’s future is in our past. What could have happened clearly didn’t because that future is over. The emotionally satisfying convention here is to treat the story as an alternate future history, an alternate timeline. This way we can continue to enjoy classics like Robert Heinlein’s Door into Summer, despite the lack of cold sleep in 1970.
A lot of people use the easy method to determine whether the writer must have been describing a time line that branched off from our own. They will notice—without error—that the ‘90’s are over. There are other, more subtle ways to catch on to the creation of invisible timelines. Space law can help you out here.
Michael Flynn’s Firestar series contains those kinds of clues. The books are set in the near-future for the time he wrote them; but in 2016, we are looking at the 1990’s in the rearview mirror. The books are a rollicking read, a bit of a soap opera, and sprawl from the New Jersey suburbs to orbital construction. The series tells the tale of a commercial titan who kickstarts the industrialization of space out of fear that an asteroid might hit Earth. This being fiction, it’s a good thing she does, because….. Let’s just say it’s good someone’s getting ready for the sky to fall.
When I read the books, I’d been working at the FAA for years, helping draft regulations to implement what is popularly Continue reading