I just want to begin my commentary by echoing how great Molly’s paper is. I have long been a fan of Molly’s work (her Distributive Values in Copyright piece is one of my favorite recent papers in IP, and presciently applies to the areas of IP that often raise vexing questions about grey areas of legality and fair use). Seen from this context, in addition, Van Houweling’s newest paper is useful precisely because it asks us, albeit implicitly, to think about distributive complexities, but from a vantage point that focuses on the overlay between contract and property principles in the servitude context. When you add the additional complexities generated by the different contexts she explores—real property, personal property, and intellectual property, the result is a really insightful framework for understanding both the limitations and the possibilities of servitudes in this context.
Moreover, part of the reason why I was so happy to see this group is because it’s a great mix of commentators, some of whom are known for their lauding of freedom of contract, and others who are known for their measured allegiance to property principles. And others, of course, who are perhaps slightly more agnostic between these areas, but who have focused on the interactivity between these two in their own work. For me, Molly’s piece, the New Servitudes, is useful, not only because it forces us to rethink the property/contract interface in a new way, but because it also leads us to contemplate how application of this interface raises an interesting host of problems in the clickwrap and shrinkwrap worlds we live in today.
As a primary matter, I want to echo Lee Ann Fennell’s useful point about looking deeper into the different forms of servitudes. Fennell usefully analogizes between the negative easements in gross, conservation servitudes and the Microsoft EULA. She also points out that the GPL and Creative Commons licenses look more like covenants in common interest communities. I think we can also go deeper into the analogy, too, and explore some of the distributive ramifications of these different types of servitudes, as well, and who gravitates to these arrangements in particular. In returning to Fennell’s assertion regarding the different types of servitudes that might be in play—it also might be helpful to explore a potential divergence among the servitudes regarding whether they seek to consolidate (and therefore strengthen) an existing bundle of rights (as in Microsoft’s EULA) or whether they seek to disaggregate (and potentially weaken) the underlying IP rights involved (arguably, both the CC and GPL tend to fragment particular entitlements from copyright, and add other things like attribution to the bundle).
Moreover, real servitudes, it seems to me, are directed towards a mutually beneficial relationship between the parties. whereas servitudes in gross seem to be designed more for the benefit of one party in mind.
These considerations may require us to imagine a reblending/remixing of other types of servitudes, ie maybe an affirmative easement analogy would help here in specific contexts. But in the end, I completely agree that these considerations are quite distinct from the “running” problems due to their inherent public policy implications.
For that matter (on the public policy angle), I found myself wanting to hear more regarding the observation that “[t]he information cost problem would be more serious if these licenses imposed conditions outside the scope of copyright law’s exclusive rights….” (p. 52). In some ways, this is at the heart of the property v. contract interface—if we see things from a slightly more restrictive standpoint (something tcould easily imagine, given the myriad of end user license agreements that are far more restrictive than the ones we might see here), servitudes empower owners to utilize contract-based agreements that foreclose things like reverse engineering, as Molly points out, and things like the first sale exception. The question, however, about how these restrictions affect information costs, ex ante, is something that I found myself wanting to hear more from Molly about how more restrictive licenses alter the information cost problems that she describes—is the change in information costs a difference of degree, of kind, or both? What new information costs do we see, and how can these agreements shift to respond to them up front? These are some things that I wondered whether it might be helpful to elucidate at a later point, perhaps.
On her really insightful points regarding the ‘problem of the future,’ in licensing here, I enjoyed her identification of two kinds of problems: (a) the problem of licensing incompatibilities, and (b) the problem of protecting downstream innovation from potential thickets.
Here, however, I found myself wondering about the potential costs and benefits that we could reasonably operationalize from the kind of ‘changed circumstances’ scenarios that we see in servitude cases in the real property context, and if so, what that kind of a solution might look like, given the remoteness, durability, and ubiquity issues she raises in the electronic context. Is the doctrine survivable in the IP/information age context, given Henry’s points about attention scarcity?
Furthermore, it seems to me that one additional complexity that we have to grapple with is the special status of copyright, as opposed to land: that certain licenses, even of the Microsoft variety, involve restrictions that are meant to “run with the work,” as Molly points out.
But sometimes, at least part of the time, the underlying “work” that is being protected might arguably comprise a mixture of both copyrighted and non-copyrighted elements, i.e elements that are taken from the public domain or elsewhere, and hence might produce a more complex mixture of commonly and privately held information (a semi-commons, perhaps?). Unlike the tangible property scenario, where these elements are almost easily always characterized as part of the domain of the owner, the copyright context suggests otherwise—it suggests that some elements might not be owned (or ownable) and others might be privately held. For this reason, it seems to me that we have to grapple with the different types of digital content we are dealing with—and the implications that these forms might take for the parties concerned.
This leads me to a comment I wanted to make on Henry’s post, since his work on semi-commons has been deeply influential to my own thinking on IP. I had a slightly different reaction to the three licenses in applying the exclusion/governance strategy to this context. In my view, precisely because of the consolidating/enlarging implications of EULA (in that it goes beyond copyright restrictions in foreclosing reverse engineering, etc)—one might conceivably argue that it might resemble, at least in some ways, an attempt at a private exclusion strategy, although I definitely agreed in viewing both the CC and GPL scenarios as more governance-related because they seemed to be much more focused on delineating particular rights and expectations to the end user. Of course, one could easily argue in the opposite direction, as Henry points out, but I wondered if it might be interesting to think about the exclusionary approach here as well. Given our ongoing discussion about enforcement—injunctive relief vs. damages – the licenses themselves seemed to suggest the need to view these strategies along a slightly looser formulation of the exclusion/governance continuum of private property agreements—and Molly’s presentation of the licensing variations helps us to apply Smith’s framework in an interesting new angle.
Like many of the other commentators, I found myself particularly fascinated by questions of enforcement. (After all, many of us property professors find ourselves, year after year, trying to explain Shelley v.
Kraemer’s constellation of state action in enforcement of covenants…and we could only imagine the effects a similar principle might have here.
But I digress.). As we know, however, there are some pockets of state/judicial enforcement that could conceivably raise interesting parallels to explore here: private rules and bylaws in homeowner’s contexts have reasonableness restrictions, and courts sometimes won’t enforce covenants if they violate public policy or trample on constitutionally protected rights. Further, in the real property context, however, we DO have helpful tests that we can use to guide state intervention or regulation: nuisance offers us the ‘unreasonable interference with use and enjoyment,’ test in the real property context.
Is there a nexus—or even a justification—for state oversight here, at all, given the public policy implications Molly identifies?
Finally, as for Stuart’s great point about looking for the reason behind enforcement of servitudes in the IP context—his question sets up a basic scenario about the interactivity between intellectual property and contract. In his scenario, if the servitude accomplishes all of the same goals as copyright does, then why opt for copyright, he asks? This is a great question. We see, after all, why servitudes are attractive, in that they operate as helpful overlays onto copyright law (from the licensor’s perspective) is because the nature of the private agreement allows for the foreclosure of options like fair use, options that the licensee might enjoy with only copyright protection. But here—we might wonder why the drafting of the servitudes themselves have not shifted to comport with the externalities that they produce. One answer could be that the externalities that Molly identifies come into play at a much later point—and it is hard to imagine how we could craft agreements that might anticipate these costs at the outset (ie loss of fair use, etc.).
However, one potential, free market defense could be to argue that in such cases, the license agreements would ideally change to reflect a shift in market demands along these lines, and I confess that the optimist in me wants to agree. After all, some license agreements force the end user to disclose whether the use is for commercial vs. personal purposes, thereby facilitating price discrimination along those lines.
Maybe it is possible for licenses to shift to respond to the externalities Molly identifies, then, and perhaps it might be interesting to compare some of those cases to the licenses at issue here.
The last area that I want to touch on is remedy and one of my favorite areas to think about: the role of property rules, liability rules, and “pliability” rules (with a tip o’ the hat to the imaginative team of Avi Bell and Gideon Parchomovsky in crafting this term). Like Stuart, I also believe that the employment of money damages might shift the paradigm in inventive ways—I am fascinated by the proposition that money damages might reduce the incentives for folks to engage in “due diligence’ in determining whether works are protected, and therefore might be less incentivized to seek Microsoft’s permission. To me, I think these licenses are perfect opportunities for us to think through the formation of ‘pliability’ solutions here (here, maybe copyright misuse might be an interesting avenue to think through). Though, in the end, however the point about remedies is also a distributive point—we might incentivize a different type of innovation by utilizing a different type of remedy.