I’m delighted to be a guest here at the Faculty Blog. And I’m looking forward to this week’s mobblog about my article, “The New Servitudes” (forthcoming in the Georgetown Law Journal). The article lies at the intersection of the two fields in which I teach—intellectual property and tangible property. So it’s a real honor to be discussing it online with luminaries from both of those fields.
Let me get things started with an overview of the paper, which is ultimately about those pesky “licenses” that purport to define how consumers may use computer programs, digital music, and other intangible works of the information age. For example, you have undoubtedly downloaded a computer program from the Internet after viewing a screen of text limiting how the program may be used; installation began only after you clicked “I agree.”
Courts in the United States have increasingly enforced such restrictions—labeling them “click-wrap licenses” and applying to them the same contractual concepts that govern face-to-face exchanges of promises. But I argue in the paper that the law of tangible property offers a different and more powerful lens through which to view them.
As others have noted (including Glen Robinson in the University of Chicago Law Review), these licenses can usefully be likened to “servitudes”—non-possessory property interests that attach to land and impose their restrictions and obligations on generations of landowners (e.g. a covenant that prohibits a homeowner from painting her house pink). Like the licenses that characterize the digital age, use restrictions imposed by servitudes bind remote purchasers with whom the beneficiaries of the restrictions may have no direct relationship. They do not arise from any human communication, but instead “run with” the burdened assets and automatically bind current owners.
Although servitudes are a familiar feature of contemporary real property law, they have long encountered judicial skepticism that has generated a host of doctrinal complications. This skepticism has been even more pronounced in the context of servitudes applied to items of tangible personal property (imagine a covenant prohibiting the owner of a horse from riding on a pink saddle).
In the article I develop an account of the evolving jurisprudence of servitudes as applied to both land and personal property, identifying the sources of traditional servitude skepticism in order to evaluate contemporary licensing practices. I apply the lessons I draw from the old servitudes to three paradigmatic “new servitudes”—the Microsoft Vista End-User License Agreement, the Free Software Foundation’s General Public License, and Creative Commons licenses. (NB: I am a board member and former staff member of Creative Commons. But of course the paper expresses only my personal views.)
My examination of the tangible servitude jurisprudence finds that servitude skepticism arises from three types of concerns: (1) concerns related to notice and information costs; (2) concerns related to dead hand control and other aspects of what Julia Mahoney has usefully referred to as the problem of the future, and (3) concerns related to harmful externalities.
Turning to the new servitudes, I find that some of the concerns that have animated skepticism about servitudes on land and personal property may in fact be more relevant to contemporary licensing practices than they are in the contexts in which they originally arose. But the new servitudes differ from each other in respects that are critical to the applicability of the servitude analysis: each of the paradigmatic licenses that I examine exhibits a different mix of problematically servitude-like features.
For example, the Microsoft EULA purports to impose restrictions beyond the background restrictions of copyright law (e.g. by limiting uses that courts have declared to be non-infringing “fair uses” under copyright law) on multiple generations of remote consumers by attaching itself ubiquitously to works of authorship for which there is limited effective competition. These features raise nearly all of the concerns traditionally associated with servitudes—potentially confusing consumers for whom the restrictions are not initially salient (notice and information costs) and impinging on future creativity and innovation (the problem of the future) by imposing restrictions that threaten the positive externalities preserved by copyright’s public-regarding limitations (harmful externalities).
The GPL and Creative Commons licenses are fundamentally different in that they arguably impose conditions that are merely a subset of those restrictions already imposed by the background law of copyright—a characteristic that mitigates both notice and externality problems. Indeed, by releasing creative works from unnecessary copyright restrictions, these licenses promise to generate positive spillovers from collaborative creativity. But, ironically, this environment of collaborative creativity can result in complex webs of overlapping and potentially incompatible conditions, causing unanticipated future problems that may even transcend the problems that necessarily arise as a consequence of copyright law’s own running restrictions and long duration. I have a few examples in mind that I am happy to describe once our discussion gets rolling.
So with those basics on the table, let the mobblogging begin!