I’m going to have to sign off without addressing the vast majority of the thought-provoking points that you all have raised over the past week. I will continue to struggle with and benefit from your suggestions, questions, and insights as I continue to work on the project for which The New Servitudes provides a framework. Thanks to Randy and Shyam for putting together the mobblog; to them and to Stew, Lee, Richard, Sonia, Henry, and Jim for participating; and to the University of Chicago Law School Faculty for welcoming me into its virtual halls.
Before signing off, I want to take up Randy’s point about static vs. dynamic servitudes, which strikes me as a very useful distinction that has implications for the concerns that I discuss in the article. Randy characterizes the GPL and Creative Commons licenses as “viral and infectious. An explicit dynamic orientation.” I’m not sure “viral and infectious” are the best adjectives. They suggest that these licenses spread their terms to strangers, when in fact they only spread them (or, more precisely, insist that they be imposed upon) descendents--copies and derivative works. So I suppose the term I might use instead is “heritable.” But in any event I agree they are dynamic in the sense not only that they spread through inheritance, but moreover that they expressly encourage propagation (by lifting the restrictions on copying and adaptation that would otherwise be imposed by copyright). This dynamism provides much of the appeal of these licenses to licensors (who want their creations to go forth and multiply). And it also makes them valuable to society: propagation represents progress in science and the useful arts. So there are great benefits to be had from this type of dynamism.
But propagation and inheritance also lead to lots of complications--complications that are related to but may even go beyond what we’ve experienced in the land and personal property servitude contexts. One specific type of “problem of the future” that I associate with land servitudes in the article is fragmentation. Drawing on Michael Heller's work, I note that servitudes divide rights in a single parcel of land among multiple owners. If it is later desirable to consolidate those rights in order to put the resource to its best use, fragmentation of the property bundle (and the transaction costs involved in re-bundling) can make consolidation difficult. Heller himself cites restrictions on servitudes among “numerous restraints [that] limit an individual’s capacity to break up property bundles too much.” Michael Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621, 664 (1998). Note that the anticommons problem (to which Shyam also draws our attention with his interesting comparison to trespass to chattels) is especially severe when rights are divided not only between the burdened landowner and the beneficial servitude owner, but also between multiple landowners and multiple servitude owners. The prospect for this kind of fragmentation is related to servitude durability. Over time land can be sold and divided and the attached burdens and benefits thus further fragmented.
Now apply this logic to a servitude attached to an object that propagates. Not only are ownership rights in the initial object fragmented, but they become increasingly fragmented, numerous, and potentially remote from each other in space and time as the object of the servitude (and along with it, the servitude’s terms) multiplies. The complications that Wikipedia has encountered in attempting to make the GNU license that applies to the millions of constantly propagating entries (contributed by tens and thousands of copyright-holding authors) compatible with Creative Commons licenses is an illustration of the unanticipated problems of the future that this kind of servitude can encounter. I’m not sure this is an entirely new issue. (Livestock servitudes?) But it’s definitely a current one--with implications for restrictions imposed on patented seeds, cell lines, animals, etc.
All of this is not to say that these licenses are not worth adopting and enforcing. As I’ve mentioned, I am a former staff member and current board member of Creative Commons and I believe in its mission. But these difficulties point to the need to focus on balancing the costs and benefits (which are great--see above re progress in science in the useful arts) and in figuring out how the costs might best be minimized.
That brings me to the topic upon which Shyam rightly pushes me--solutions. What I want to emphasize for now is that the experience with land and chattel servitudes that I document in the article suggests that there are multiple ways to deal with the types of problems that servitudes can cause.
One approach (which Henry’s work illuminates) is standardization: simply refusing to enforce certain types of idiosyncratic servitudes because they are likely to cause confusion, become obsolete, and/or harm third parties. The “touch and concern” and other servitude subject matter requirements are examples of this approach.
Another approach (which Richard’s post emphasizes) is recording: simplifying, standardizing, and centralizing the provision of notice in order to reduce information cost problems. Interestingly, in the land servitude context the standardization approach is increasingly being abandoned in the United States as the land recording system has provided an alternative mechanism for providing notice. (Whether it does so adequately, and whether other problems remain, is a contested question.)
Stew, Shyam, and Sonia all suggest yet another approach--limiting remedies (injunctive relief in particular). Note that this is the approach that the Copyright Office advocated in its Orphan Works Report, which (as I observe elsewhere) aims to address some of the problems of the future caused by the servitude-like nature of copyright itself.
There are more potential responses to the concerns raised by old and new servitudes--including refusing to enforce on the basis of changed circumstances, imposing heightened notice requirements, and Jim's fascinating Copyright Act smorgasbord proposal. But here I just want to give a sense of the wide variety of alternatives (and the variety of institutions that might be involved in adopting and/or imposing the--courts, regulators, legislators, self-regulatory bodies, etc.). As I move forward with this project I hope to say more about these alternatives, and about how they mesh with existing doctrines (including preemption, exhaustion, misuse, unconscionability, etc.) that might be applied to the new servitudes.
Thanks again, and cheers from sunny California.