Skip to content

Equitable Servitudes in Packaging

With so many interesting information law and policy topics floating around the blogosphere, you would think that something more, well, substantial, would catch my eye.  But instead I’ve been hooked by cardboard boxes.

Out of Denver yesterday came the news that a man was threatened with a violation of federal law for recycling U.S. Postal Service “Priority Mail” boxes.

As you may know, the USPS hands these boxes out to customers, expecting that customers will use them to ship things using the USPS Priority Mail service.  It turns out that if you attempt to do anything with the boxes at USPS other than use them for Priority Mail, you may be “misusing postage property.”  In the Denver case, the accused claims that he is recycling Priority Mail boxes discarded by others, presumably after they’ve been sent through Priority Mail at least once.  Moreover, he turns the boxes inside out and then retapes them, so to all outward appearances, they present as ordinary brown cardboard boxes.

Unacceptable, says the USPS; once a Priority Mail box, always a Priority Mail box, and only through Priority Mail — or in the dumpster — may it go.  Is this position out of the ordinary even for the USPS?  Perhaps not; a comment at Eric Muller’s Is That Legal? reports a similar situation several years ago.

Non-lawyers should note that the law of personal property “disfavors” such “dead hand” controls on what you can do with tangible things that you own outright.  Property law calls them “equitable servitudes on (or in) chattels,” and most of the time, lawyers assume that they are not enforceable.  If the post office gives me a box, then I can burn the box, put kittens in the box, or plant flowers in the box — as well as send the box through Priority Mail, Federal Express (which might insist on the box being turned inside out), or inter-departmental mail.  There is no what-I-can-and-cannot-do-with-the-box provision that “travels” with the box and binds me to its terms as a downstream recycler, merely by virtue of the box coming into my possession.

The scope of law’s antipathy towards these equitable servitudes is not completely clear, despite the seat-of-the-pants judgment that they aren’t enforceable.  That antipathy has been of special interest to copyright lawyers and scholars recently, because the mechanics of open source software licenses and Creative Commons licenses, like licenses for proprietary software, bear the hallmarks of the dreaded equitable servitude.  Compare Glen Robinson’s piece in Chicago (concluding that good software servitudes are analytically indistinguishable from bad software servitudes, and both are OK) with Molly van Houweling’s piece in Georgetown (distinguishing good software servitudes from bad software servitudes) with my own piece in Case Western (concluding that servitudes as such may not be the real problem, because these days, it’s hard to know where the thing stops and the servitude begins).

I understand the USPS argument:  They don’t want to hand out free boxes as a teaser for the Priority Mail service, then have customers free ride by sending Priority Mail packages through the cheaper Parcel Post.  (This is a far more sensible foundation than Federal Express’s trademark-based objection to  But their heavy-handedness does them no favors.  Is the USPS using a servitude to protect what sounds like a failing business model?

Eventually the policy, like the boxes themselves, has to break down.  What if I take two Priority Mail boxes and tape them together into a single container?  Can I ship *that* item via Parcel Post?   Can I cut my Priority Mail box in half, and fold one half into a new box that gets shipped through Parcel Post?  Do customers owe the USPS a duty of box integrity?  Will the USPS assert a right to open my package for parcel piracy?  Is packaging DRM in our future?