For those wanting to dig deeper (and/or with time on their hands), this new essay may be of interest: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028947
The New Servitudes
MOLLY SHAFFER VAN HOUWELING
Georgetown Law Journal, Forthcoming
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. Similar licensing approaches - albeit with quite different substantive terms - have been extended into the realms of 'free software' and 'free culture.'
The law of tangible property offers a different lens through which to view these contemporary techniques for distributing and controlling intangible products. When someone buys land that is purportedly subject to use restrictions imposed by a prior owner, those restrictions are sometimes enforced as 'servitudes' - non-possessory property interests that attach to land and impose their restrictions and obligations on generation after generation of landowners. Like click-wrap licenses and similar techniques of 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 possessors.
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....