This week at the Chicago Faculty Blog, a mobblog of distinguished commentators has been kicking around Molly Van Houweling’s interesting recent article, The New Servitudes (Georgetown Law Journal, forthcoming, I believe). (Here’s a link to the list of posts.) The paper attempts to situate “new” servitudes — prospective rules that enable and disable uses of intangible things, like copyrightable works — amid inherited presumptions against equitable servitudes in chattels (tangible things) and doctrines that endorse servitudes in land. Proprietary EULAs and open source software licenses and Creative Commons licenses are examples of these “new” servitudes.
The topic is one that has interested me for a long time. A couple of reactions both to the paper and the mobblog:
One is that the problems here go beyond whether these “new” servitudes are comprehensible in terms of standard property or contract doctrine, i.e., either enforceable, doctrinally speaking, or welfare-enhancing, in conventional policy-speak . The curious thing about the GPL and Creative Commons licenses is that they are widely accepted and complied with (I believe), and are relied on as part of the construction of elaborate products and systems — despite the absence of any convincing evidence that they are, in fact, legally enforceable. Why?
Two (as a couple of mobblogers have observed) is the equivalence not only of contract and property regimes in this context, but the relevance of building these servitudes directly into the forms of the information works themselves. Do inherited notions of contract and property matter when downstream consumers have only the “thing” that they find in their hands? I agree that they do. But not because the law has to work out a novel accommodation of the original producers’ interest in the context of “downstream” uses. The impact of the “thingness” of the found work or technology suggests to me that the doctrinal, policy, and philosophical concern here derives less from the persistent interest of the original producer or manufacturer and more from the interaction between users/consumers and their environment. Tom Merrill and Henry Smith (one of the mobbloggers) have written about this; my own contributions to this theme are available here and here.