EULAs and Servitudes
Molly Shaffer Van Houweling has an interesting paper on EULAs and servitudes (think: real property). According to the abstract:
In the age of electronic commerce, consumers routinely acquire intangible products without engaging in any direct human interaction. These products - computer programs, digital music, etc. - often arrive bearing terms that purport to limit the sticks in the consumers' bundles of rights in ways that depart from the background limitations imposed by intellectual property law.
For example, a consumer who has downloaded a computer program from the Internet might be presented with a screen of text imposing myriad restrictions on how the program may be used; installation commences only when the consumer clicks '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...
In this article I develop a comprehensive account of the evolving jurisprudence of servitudes as applied to both land and personal property, identifying the sources of traditional servitude skepticism in order better to evaluate the new generation of running restrictions on intangible informational goods.
I apply the lessons I draw from the old servitudes to paradigmatic examples of contemporary licensing practices - including Microsoft end-user license agreements, the Free Software Foundation's General Public License, and Creative Commons licenses.
A non-gated version of the paper is here and the author is discussing these issues at the University of Chicago Law School Faculty Blog this week.
