I’ll start with related housekeeping and then turn back to Molly’s paper.
There was a terrific conference on fair use Friday at Columbia Law School’s Kernochan Center. Uniformly good starting with Paul Goldstein’s keynote and working through the three panels. Rebecca Tushnet liveblogged it—yet another reason to have her at your conferences—and you can get her posts here, here and here. If you have found this mobblog interesting, you will probably want to read Rebecca’s posts. Mike Madison also has a post addressing the JK Rowling HP Lexicon situation, which received some discussion at the conference. (Mike also has a post on our mobblog discussion as well.) I have posted my slides for my talk at the Columbia conference and the slides for a more extended version of the talk that I gave Thursday at the Institute of Government & Public Affairs at the University of Illinois at Chicago. And all of that is based on a forthcoming paper for the symposium volume for the Columbia conference. I’ll post that on SSRN in a week or two but am happy to email the conference version to anyone who would like it.
I won’t say more about fair use here, but want instead to go back to Molly’s paper and talk about the way in which the new servitudes differ from the old ones. I think we should focus on static v. dynamic. The GNU public license and the Creative Commons licenses are viral and infectious. An explicit dynamic orientation. The point is subsequent use but also typically I think to create more stuff that shares the same licensing characteristics. Molly was on the inside on this on Creative Commons, so I am curious to get her perspective on this. This is about the battle of the commons, where the GNU and CC licenses are trying to bulk up their side against proprietary content and software.
I don’t think that the standard proprietary software or content EULA does this. These are much more static, in that they want to lock down how the recipient of the code or content uses it. These are first and foremost about restricting use. And I would say doing so equally on initial purchasers and subsequent purchasers. If I buy a Dell desktop with Vista, Microsoft wants to restrict my uses, but those same restrictions will attach to someone who buys that desktop and software from me. I confess that I don’t think that this is so much about notice, since the contracts that we all quickly click-thru don’t actually provide, I suspect, much actual notice in practice.
I don’t have a good sense of the dynamic vs. static qualities of the old servitudes. The ones that I know best are the chattel servitudes in cases like Bobbs-Merrill, Whiteman and Dr. Miles. Those are about price discrimination and minimum resale price maintenance and aren’t explicitly dynamic in the way that I think the GNU and CC licenses are.