The excitement was palpable in the office: they were only two weeks away from the landing on Mars. The dream of the company had always been to send people to Mars. Every commercial launch, every space station docking, every contract that brought in revenue was all marching towards the dream of Mars. Everyone was excited. Of course, the legal department at Mars X, Incorporated had very little to do with the Martian mission in any direct sense. But everyone was a part of the team, and the company helped them to feel that they were all a part of the team. Taking the company through an initial public offering and changing its name to be Mars-focused had brought in the final capital necessary to launch the mission to Mars. Rocket scientists might figure out how to get there, but it was legal and finance teams that got them the cash and supplies they needed to do it.
Jacob was in early. He didn't actually have any reason to be in early, but everybody was coming in early and staying late these days due to the sheer excitement of an impending first man-and-woman on Mars. It wasn't even 7:30 a.m when he got a message summoning him and his boss to the CEO's office immediatelyi. This couldn't be good -- nobody hastily summons the lawyers to tell them good news.
Jacob hurried to the top floor after getting the instant message about coming to the CEO's office. He popped in to see his boss first, who sat across the hall from the CEO, figuring they were supposed to go in together.
"Do you know what this is about?" Jacob asked the corporation's general counsel.
"No idea," she said. "Let's go find out."
As they walked over to the CEO's office, he waved them in and finished a phone call. They sat in trepidation, worried that something might be going wrong. If the landing had to be called off, there would be huge contractual problems. They had negotiated a massive deal for the broadcast of the landing. This wasn't going to be free programming like Apollo.
"Hey," the CEO said. "I've got a question for you. This is a serious question. If we land on Mars, do we own it?"
The lawyers stared back blankly.
"Seriously," the CEO continued. "If we land on it, do we own it? Can we claim it? I realize it's not necessarily worth anything now, but when you think about the potential future value from now to the end of time, this is huge. Are we going to own Mars, and if we don't, who does?"
Jacob looked at his boss; she gestured for him to jump in.
"Well, I don't think anybody actually owns Mars."
"Yet!" The CEO interjected. "And nobody's been there yet. And nobody cares who owns it yet. But this is about to change. At least look into this. Here's what I want to know: Can I claim Mars?"
* * *
What Jacob loved most about this job was that it was okay to be a nerd in the office. After law school, he went to work for a big law firm and just couldn't be himself. One year, he took off work to go to Comic-Con and had to lie to his coworkers about where he really was so he wouldn't be mocked. At Mars X, he wasn't mocked for being a sci-fi fan -- he was mocked for being a fan of things that were too pop culture and not nearly niche enough.
When he first interviewed with the legal department, his boss asked him what his favorite episode of the show Firefly was. He answered: "Out of Gas." His boss vehemently disagreed, but the mere fact that he was able to debate this was enough to get past the personality test. His resume and legal experience did the rest.
It wasn't a surprise that a company like this would draw people like him. Mars X attracted nerds, yes, but the most talented of them all. It felt great to be a part of something special. As a lawyer in a corporate legal department, Jacob wasn't the person designing rockets or making sure payloads worked or doing all the things that, quite frankly, he didn't understand. But he took pride in keeping all that other stuff working.
The company had a very small, very lean legal department. The other lawyers were specialists that handled things like tax or human resources. Jacob covered just about everything else as the corporate generalist. He might spend one day negotiating with the government for the contracts to bring people to the International Space Station or to put up some kind of spy satellite. The next day he might be working on a contract to buy rocket fuel from some chemical company. He got to work directly with the CEO when they took the company public. The random projects always came to him, and he liked that about the work.
Jacob had handled plenty of weird research assignments in his decade of legal experience, but with this one he didn't know where to start. Wikipedia seemed as a good a place to start as any, though it was usually a bad sign when a lawyer was starting with Wikipedia in trying to solve a complex legal problem. Within a few minutes, Jacob was reading the Outer Space Treaty of 1967, technically known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. This seemed a promising start. It covered not just the moon, which was clearly the focus in 1967, but also "other celestial bodies." So that clearly meant to cover Mars. He paused at Article II: "Outer 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."
That wasn't necessarily a problem, he thought. By its terms, it only covered national governments claiming to own a planet. His mental wheels spun as he thought about this. Actually, he figured, this only helped them. It prevented the United States from claiming ownership of Mars by virtue of MarsX being a U.S. corporation. By law, no national government owned Mars. The U.N. didn't claim to own Mars -- and really, the U.N. was just the United Nations of Earth, with no real claim to Mars anyway. He looked over Article II again and thought about the claim by "use or occupation" wording. His mind turned back to law school.
In property law class, they had read some very old cases, including some pretty horrible and hard to read stuff. He remembered whales hit with "bomb lances." Then he remembered a famous old Supreme Court case. It was racist as all hell, dealing with Native American land ownership rights or lack thereof. But it was a famous case because it went through all sorts of philosophy and history of who owns land, how it's claimed, et cetera. Within a few minutes, Jacob was reading about the "discovery doctrine," again on Wikipedia. Here it was, in international law, and U.S. domestic law, an idea that discovery gave the right to claim property. And this right was "consummated by possession." as the famous Supreme Court Chief Justice John Marshall had written. Jacob had an idea.
He spent the next few days on legal research, bouncing ideas off his colleagues, and writing up a formal memo to his boss. She worked it over with a red pen and pressed him on all his ideas and conclusions. The week before the landing they were ready to present it to the CEO.
"We can do it," Jacob led off. "I think the company can assert a colorable legal claim to ownership of Mars by virtue of discovery and, more importantly, actual possession of the planet."
"I knew it," the CEO smiled. "I always felt it in my bones. But really, how strong do you think our claim will be?"
"Well, it depends." Jacob began pulling out his memo and supporting materials. "As a practical matter, nobody else has the capacity to go to Mars. So in some ways it's an academic point, but it could really matter in the future. There's legal precedent going back centuries about the right of discoveries -- think European colonists -- to own what they land on and discover. It's pretty racist stuff, but I think we can rely on it here because there are no aboriginal people on Mars."
"At least we hope not," his boss jumped in, adding a little levity.
"And current treaties prevent the U.S. or any other government from claiming Mars." Jacob went on, "Which means the feds aren't going to claim it because we're an American company. I see it as a multi-step process. Right now, we already have a presence on Mars, but that's not much different than what NASA has." Jacob was referring to the payload delivered by the Mars I rocket. Two years ago, the rocket that served as the test flight for their subsequent human mission had landed on the Martian surface. It included the supplies and base camp that the human mission would land next to. It also included the cameras that would watch as Mars II landed and the humans climbed out. The extra camera angles helped to sell the video rights.
"But in a few days, we'll have people there," the CEO interjected with a smile. "Do you know about my flag?"
Jacob shook his head. He had assumed there would be no flag-planting like on the Moon. The mission was corporate and explicitly done in the name of humanity. The crew consisted of a former Russian cosmonaut and an American doctor -- an intentionally international approach.
"It's built into the bottom of the lander," the CEO explained. "It's our corporate sigil. And it's not really a flag. It's the one on the bottom of the ship. But it's designed to break off as it approaches and is weighted so that it lands on its four-pronged base. It's solid titanium and it will face up to the sky. Mars isn't a windless moon, so I wanted a way to plant a flag that works on Mars. And this sucker will last a thousand years, they tell me."
Jacob shuffled through his research papers. He didn't particularly think the longevity of the flag mattered, not as much as the actual planting of it and the message the gesture sent, but it couldn't hurt. "Great, well, that's the first step. Next, we need to assert our claim publicly. In our next quarterly SEC filing we're going to need to list it as an asset."
"Love it," the CEO was delighted. "We'll catch some hell for it."
"Yes, we will." Jacob handed over a set of draft talking points. "But we've got almost 90 days before we have to file it. And when we do, you'll need to be ready to defend our claim in the media. We won't be going to court over this, we'll be trying to justify it to the world. Here's my draft language."
The CEO looked at a proposed securities filing dated three months out with a bunch of jargon about contingent claims and uncertain values but setting forth a claim to corporate ownership of the entire surface of Mars plus any celestial bodies in orbit of Mars. It claimed that all Martian property rights were held in a wholly-owned subsidiary of MarsX Inc. to be filed and known as Mars, LLC. "Mars, LLC," the CEO asked. "Why a limited liability company, not an Inc.?"
Jacob grabbed out one of his other papers. He had expected the question. He doubted the CEO cared about the nuances of corporate and LLC laws, but he suspected he would want to know why one part had a different name than another. "It's because Mars, Inc. is already taken. By the candy company, you know, the one that invented Mars Bars?" He passed over the evidence.
"Are you kidding me," the CEO asked as he grabbed the paper, muttering something about buying these people out and cursing about Willie Wonka.
"Over time, we'll want to expand public acceptance of our rights to Mars." Jacob handed over more papers. "As our stock prices rise, we'll have the natural support of our investors and the hedge funds that have backed us. They will want our claim to be valid and accepted since it makes their stock more valuable. Eventually, we can start parcelling up and selling land or mineral rights. Then the people who've bought those become another constituency that backs our claims. We'll set up an arbitration system for disputes about this stuff so that our own pseudo-court system deals with these claims and we avoid having a government court rule it's all invalid."
"Good, good, good. You really think this will hold up?" The CEO's excitement had turned serious.
"Why not?" Jacob asked in a similarly-serious tone. "Think about Alaska. The U.S. bought it from the Russians. Why did the Russians have the right to sell it to us? Because for some silly colonial reason we accepted that they had the right to sell it. So we just need to get people to accept our claim here. And we're the first ones there, we're the only ones there, and we're not stripping indigenous peoples of any rights. Arguably, our claims are way better than any of the European colonizers."
* * *
The CEO had authorized the project. He was so happy with the legal work-up that he did something special to reward the lawyers -- he gave them a better seat for the big show. The control room for the Mars landing was understandably limited to the people doing the actual work plus a few high-level dignitaries. Putin was attending to wish the Russian woman good luck. The Pope had declined attendance but would be praying during the entire landing sequence from his private chapel. And a short distance outside the doors of the mission control room was a small conference room. The legal team had been rewarded with the privilege of parking themselves in this conference room during the historic landing. They couldn't actually see into mission control -- unless they poked their heads out of the conference room's single door -- but they were close enough to feel the excitement.
The legal team arrived early on the landing day, just to make sure someone else didn't commandeer their respectable conference room. It was full of lawyers, snacks, and laptops. The live feed was up on the conference room's big monitor while the laptops all showed different data feeds, news reports, and the like. Jacob had something else loaded on his laptop too. He was set to file Articles of Organization with the Delaware Secretary of State to register Mars, LLC the moment the ship landed. There really wasn't any reason he couldn't file it now, or couldn't wait to file it until tomorrow, but he felt that being ready to push the button as it happened made him a part of history.
The day was full of tedium, suspense, and idle chit chat as they waited. The rest of the world was waiting too, but the lawyers' lack of purpose was more pronounced given their close proximity to the hub of real activity. As the day advanced and the images from Mars II began to more clearly show an approaching red planet, the chit chat stopped and the legal team waited in silent excitement.
When Mars II finally began to enter the thin Martian atmosphere, the surface base deposited by the Mars I rocket added a second feed allowing a split-screen view. Humanity's greatest achievement viewed from the ground as it came in to land; humanity's next frontier approaching from the lander.
The voiceover talent announced that Mars II was about to become visible to the base and counted down -- "ten seconds to visibility." Jacob realized he was holding his breath -- better save that for the real count down. As he exhaled, the left side of the split screen view went black. Mars II wasn't providing any visual anymore. The surface camera was still showing a live feed skyward. Jacob grew angry in frustration at the technology that was depriving him of the view he had dreamed of. His boss was on her feet peering out the door towards mission control. Jacob could hear people yelling. He couldn't hear what they were yelling, but they were yelling.
On the right side of the screen, the view from the surface showed a smoking pile of wreckage descending from the sky towards the Martian surface. Jacob didn't understand what he was seeing. People were crying. He was crying. The voiceover was saying something had gone wrong. The debris hit the surface. The lead voiceover on the feed was asking some expert if it was possible anybody had survived. Anybody watching the picture knew that it had not. The camera kept rolling.
Jacob thought about Ben and Tiana, the two corpses that just crashed on the Martian surface. They were, at least in theory, his coworkers. He had shaken their hand once when they came in for a meet and greet before launch. They were dead now.
"Do we need to pull the feed," his boss asked.
Jacob tried to snap himself out of his distressed state. That was a legitimate question. Common decency might suggest that they turn off the feed out of respect for the loss of human lives, but the broadcast agreements required that they keep streaming. "No, we need to keep it going."
They sat in the crowded conference room in stunned silence. The voiceover man wasn't saying anything. The din of noise from mission control had reduced enough that they could hear steps pounding down the hall.
The CEO popped in and called to Jacob: "Can I claim it?"
"Huh?" Jacob didn't understand. Claiming the bodies didn't make sense given the lack of method to return them. There was no idea of what condition they were in.
"Can. We. File. Mars, LLC." The CEO started slowly, speeding up as he talked. "Can the company claim ownership of Mars even without living people there? Our flag was made out of titanium, it's certainly on the surface there somewhere. And doesn't it sound better to say that we paid with blood? That's got to be a better claim than just standing there holding a flag. Am I right," he pressed on, his words ringing out in rapid succession now. "Can we claim it? Can we file it?"
Jacob shrugged. Why not, it was worth a try. It's not like anybody else had a better claim. Jacob toggled to his Delaware login and filed Mars LLC as the CEO watched over his shoulder. When the deed was done, the CEO wheeled out of the room and returned to mission control, leaving the lawyers and their laptops behind in the conference and the bodies of their colleagues on the surface of the red planet.