Molly's very insightful Article does an excellent job of identifying the various issues at stake in servitude enforcement and analyzing how they are likely to carry over to the world of intangibles. I’m always fascinated by the interplay between property metaphors and intellectual property, and the Article serves to highlight the fact that analogies and comparisons between the two areas can indeed be beneficial – as a matter of both policy and doctrine. Reading her Article, I had three somewhat connected thoughts.
The first relates to the “problem of the future” and its connection to a potential anti-commons situation. Molly’s principal concern in the context of both chattels and intangibles seems, in this regard, to be with resource underuse as a consequence of servitude enforcement. When the transaction costs of negotiating releases from restrictive conditions (in order to use the resource) exceed the benefits of the use, a potential user may be dissuaded from using the resource altogether. While the possibility of an anticommons is certainly a matter of concern, I wonder why we don’t have reason to believe that the common law (i.e., courts) is likely to develop pragmatic solutions to it, just as it has in other contexts, when resource peculiarities so demand.
Take the case of trespass to chattels. One of the reasons why an anticommons is more likely in the context of chattels and intangibles (as opposed to land) is because these resources have somewhat fuzzy/porous boundaries. In other words, the granularity of the resource makes monitoring, enforcing and indeed avoiding its boundaries cumbersome and difficult. If the law were to allow a trespassory action for any and every interference with a chattel, innumerable everyday situations would give rise to potential liability. Touching someone’s parked car while crossing a street, or brushing against another’s handbag in a crowded subway train – whether intended or not – would give rise to potential tort liability in the exact same way as it would if the resource were land. If individuals had to guard against the possibility of such liability in their everyday interactions, one might see such potential liability inducing inefficient behavioral modification among individuals, akin to an anticommons (e.g., you might think twice before entering a crowded train/bus, or crossing a street with cars parked on both sides).
To mitigate the potential for this inefficiency, the law actively disallows trespassory claims for interferences with a chattel (as opposed to dispossessions), unless the chattel itself is physically harmed (see Restatement (Second) of Torts § 218). Thus, merely touching a parked car isn’t an actionable tort, while scratching it with a nail certainly is. This move marks the law’s conscious deviation from the law of trespass to land, and can be explained by its attempt to minimize inefficient behavior likely to be associated with potential liability.
Why then do we have reason to believe that common law courts aren’t likely to be driven by a similar set of pragmatic considerations in their enforcement of chattel/intangible servitudes? Indeed, in trespassory claims relating to intangibles, courts have come around to seeing the same set of concerns that arise in relation to chattels (i.e., fuzzy boundaries and high enforcement/monitoring costs) as carrying over to intangibles (see Intel v. Hamidi, 71 P.3d 296 (Cal. 2003)). Taking Molly’s example then of the printer and recycable/non-recycable cartridges; why wouldn’t a court just refuse to enforce the condition for similar pragmatic reasons, given its treatment of chattels elsewhere?
This connects to my second point: the issue of enforcement, something Stewart and Sonia have touched upon in their posts already. Does it make a difference at all, whether courts enforce chattel/intangible servitudes using liability instead of property rules? In other words, if individuals (faced with a potential anticommons holdout) were to go ahead and use the resource on the assumption that courts will eventually do no more than enforce the servitude by awarding a plaintiff (or plaintiffs) damages, how is this likely to impact user incentives? Thus, if Wikipedia were to eventually move to a Creative Commons license, and users were to then recycle content (created under the original FDL), would the non-availability of injunctive relief have any impact on parties, thereby minimizing any potential anticommons-underuse?
The issue of enforcement in my mind though, goes to more than just property vs. liability rules. In some situations, disallowing an action altogether (or allowing it only when additional conditions are satisfied) isn’t a second-order choice between entitlement protective regimes, but rather a first-order decision about the existence of the right to begin with. Injecting additional uncertainty into the enforcement process (beyond just the choice of remedy), by making the very existence of the right (to the servitude) conditional, might then go a long way in deterring both inefficient enforcement and underuse. Again, the law of trespass to chattels is instructive, since the choice that the law makes isn’t just between property and liability rules, but rather between entitlement-recognition (a first order choice) and non-recognition.
My last point also connects to the “problem of the future” and relates to Molly’s concern that individuals are likely to encounter “unforeseeable” changes owing to technological developments or indeed pure serendipity, making their original licensing commitments palpably inefficient in hindsight. Again, why not look to how courts have allocated the risks associated with low-probability events in interpreting/enforcing licenses elsewhere. In allocating licensing rights associated with new technological uses, courts have for over five decades now employed a test of “foreseeability” to determine whether a new use was part of the licensee’s grant or retained by the licensor (see Bartsch v. MGM, 391 F.2d 150 (2d Cir. 1968) and more recently, Boosey & Hawkes Music Publishers, Inc. v. Walt Disney Co., 145 F.3d 481 (2d Cir. 1998)). In situations where a new use was objectively unforeseeable, the license is deemed to have excluded it, given contract law’s reliance on actual/presumed consent. If servitudes are in the end contracts, shouldn’t we expect to see defendants (and perhaps courts too) applying a similar test of foreseeability to mitigate unanticipated changes that seem to bind a defendant to more than he/she could have possibly consented to? Again a somewhat well-established common law device might serve to minimize inefficiencies associated with unforeseeable developments, that Molly identifies as part of the problem of the future.
In the end, all of my points seem to place significant reliance on the ability of courts to (i) take notice of these concerns, and (ii) develop pragmatic solutions to them incrementally, looking to connected areas for guidance. To the extent that one remains skeptical of courts’ ability to do just this, these solutions will certainly appear utopian.