NUL Copyright

Click-wrap licenses

A quick link before the main topic: if you haven't seen LawCommons or AltLaw, have a look. Open access to full text of Supreme Court and Appellate Court decisions going back to the early 1970s. Very nice.

Click-wrap licenses
There's an interesting thread unfolding over at the University of Chicago Law School Faculty Blog, and I'm finding it fascinating on two levels.

As technology continues to evolve, the content we use and programs we interact with are more and more likely to be governed by terms in a license, rather than simply by copyright law (and I do pause and smile any time anyone uses "simply" and "copyright" in the same sentence). Unlike traditional license contracts, the terms in these licenses are usually not negotiable. There was an attempt back in the late '90s to have something called the Uniform Computer Information Transactions Act (UCITA) passed, which would have given these so-called "click-wrap" licenses the same force as a traditional license. A number of groups, including the American Library Association, joined the AFFECT coalition to oppose UCITA, and largely succeeded in preventing its introduction and passage. Blogger and InfoWorld columnist Ed Foster continues to maintain a blog, GripeLog, documenting what he considers to be bad click-wrap licenses and End User License Agreements, or EULAs.

Back to the U of C faculty blog, where guest blogger Molly Van Houweling introduces her forthcoming paper, "The New Servitudes," an analysis of three recent electronic license schemes, the Microsoft Vista EULA, the Free Software Foundation's General Public License (GPL), and the Creative Commons License, as examples of what are known in property law circles as "servitudes.":

"...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."

I'm fascinated by this for two reasons: first, because I encounter these licenses more and more in my everyday work, as we all do, and worry about the long-term effect they will have on the collections we build and the researchers who will want to use them long after we're gone. But it's also quite fascinating to watch scholars do scholarship in an open environment: thanks to the open access repository Social Science Research Network, a pre-publication draft of Van Houwelling's paper is available for free online. Thanks to the blog, we see several faculty openly discussing her ideas, including one who carried the discussion to her 1L property law class, engaging future legal scholars in the debate as well.

by Claire Stewart | Publications | TrackBack