Personal Property Servitudes

Abstract

This article explores the lawfulness of servitudes on personal property in both common law and intellectual property regimes. The common law has from ancient times recognized the general right of owners of real property to burden land with restrictions on use - restrictions that "run with the land" - subject to various conditions and limitations. It has been more ambivalent about similar restrictions on personal property. Why? That was a question broached seventy-five years ago by Zechariah Chafee, though he never fully answered it. Today, the question has acquired a new importance because of the pervasive use of computer software licensing restrictions that, for all practical purposes, can be regarded as a form of property servitude. Software licensing restrictions implicate specialized rules of intellectual property, such as the first sale doctrine. However, those rules are basically derived from common law policies (most notably policies against restraints on alienation and restraints of trade) so the question about the legality of such restrictions is essentially no different for intellectual property than for common law property. In all events this article argues that the traditional hostility to use and resale restraints on personal property is misguided in both the common law and intellectual property contexts. While there may be legitimate reasons for limiting an owner's right to impose post-transfer restrictions on use and resale, those reasons are more exceptional than has been commonly assumed. Moreover, in the new digital world where servitude-type restrictions can be engineered into the architecture of the property right itself public policy restrictions on contractual "servitudes" may prove to be ineffectual, raising a new reason to take a fresh look at old conceptions of personal property servitudes.