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The final paper presenter at the conference is Molly van Houweling.

Both environmentalists and cultural environmentalists have complex relationships with property. We assume these relationships are adversarial, but they don’t have to be. Why aren’t the hills along 280 alive with the sound of condominia? Partly because property allows civic-minded organizations to buy rights in property and preserve it. Increasingly, environmentalists are using property rights to protect open space. There’s a property turn, then, in environmentalism.

The same thing is happening in cultural environmentalism — first with Free Software, now with Creative Commons and others. The conservation easement — tool of environmentalists — separates the right to possess from the right to develop. The sticks in the bundle are divided in a way designed to preserve the undeveloped nature of the land.

The FSF and CC use a similar technique — a “cultural conservation easement”. The GPL, for example, gives the right to copy and adapt the software, but separates that stick from the right to control downatream copying and derivative works.

Both of these moves have been important, and have been rightly praised for their voluntary nature. The GPL-like technique is being proposed for all sorts of IP-related problems. Given that, let’s make sure we’re not doing unintended harm.

My main project is to identify two big concerns coming out of the literature on conservation easements. First, background on conservation easements in real property.

They’re a species of servitude — a non-possessory right running with the land. The conservation easement violates several common law rules intended to limit servitudes, like the “touch and concern” requirement. That’s not a problem today, since every state has gotten rid of the common law rules for this purpose. It’s still worth asking about the purpose of those common-law rules.

What concerns animate the common law rules?

First, notice and information costs. The rules are around to make sure buyers know what they’re getting. Idiosyncratic servitudes can surprose people and can muck up the property system with unexpected and weird conditions. Maybe we should have a numerus clausus principle, since recognizing too many forms creates information costs. Why don’t we worry about this in the conservation easement context? We don’t need them, since we have a system of land recording (which didn’t exist when the English common law rules arose). In the context of cultural conservation easements, we don’t have this recording system. We don’t know what the background rules are and what all the variations are.
Second, the problem of the future. Serviitudes impose too much control on future generations. We don’t want the living to be limited by the wishes of the dead, and we don’t think that dead people will always make efficient land-use decisions. She quotes Mahoney.] The sticks are divided up in a way that makes them hard to put back together on policy grounds in the future.

Do these problems plague cultural conservation easements as well? I think they’re serious worries, but the problems are for the most part not caused by the manipulation of the IP rights but by the nature of the underlying copyright system.

First, applying the notice problem to GPL and CC. Typically, the terms are embedded in the code or the work is somehow marked. The little CC logo doesn’t communicate everything about the license. But the notice here is better than the background notice that copyright provides. The baseline rule is use prohibition with no notice, so imperfect notice of allowed uses is OK, since it doesn’t upset any assumptions.

Second, the problem of the future applied to the GPL and CC. It’s less of a problem than it would otherwise be. In the absence of the GPL, commercializing software still requires negotiation with the author. The lessons we can extract from the conservation easement movement are useful for improving our cultural conservation easements.

Cultural conservation easements can be complicated and can confound our future endeavors. We need to continue to learn lessons from the environmental experience to tell when to use them.

Comments by Peggy Radin:

This is a property teacher’s dream project. Three ideas. First, the relevance of the public-private distinction and democracy. Second, the problem of abstract versus situated freedom (or freedom now versus freedom later). Third, standardization versus customization.

Public and private. Today’s scholarship ignores the distinction, but that’s because it’s been deconstructed by legal realism. The distinction has to exist pragmatically anyway. TPMs, for example, are self-help and raise this concern. The copyright act is supposedly democratically imposed. Copyright might be like a servitude — non-bashing runs with the ownership of a baseball bat, and is thus a servitude too, in that sense.

Placing a renewal burden on the owner is better than making a servitude run with the digital object.

Freedom now and freedom later. Utility is utility, now or later. Clean slates don’t help much.

Molly’s Response:

Two tidbits. First, a potshot at Richard Epstein. The only dead hand control he doesn’t like is the GPL. Second, the reason it’s hard to apply public/private is that legal realism proved too much. If everything’s public, where do we go? What do we do now? Do we throw up our hands? We tend to think of things as more public and less public — the more public they are, the move checks they require. This sliding scale describes the ways we’ve treated property versus contract. Once contracts are ubiquitous and subject to market difficulties, they have more of the public characteristics of property and less of the private excuses of contract. They need more democratic control for that reason.

Comments by Yochai Benkler:

We can be potimistic that we’re getting toward more democratic control over the imposition of these property regimes.

You make your job too easy by comparing directly to copyright. It’s obviously better than copyright, but we need to look at the broader menu of possible property systems.

The problem of the future is easy with BSD, harder with the GPL, and harder still with CC because of the choices available to the author.

I don’t have a real guess as to whether it’s better to have more choice and a broader movement or less choice and a smaller movement. You can imagine a CC that’s all SA, or all NC.

The fact that we have this conference now is not for resting on laurels, but understanding the trajectory of a provisional success and a calll to arms. Constantly measure the intellectual work against real-world approaches. Measuring scholarly work by its political feasibility is hard and painful. The same is true in reverse.

There’s much work to be done for all of us. Our freedom rests on our ability to succeed both intellectually and as a movement; our culture depends on it; and our capacity to promote human flourishing depends on it.

Molly’s response:

Part of the problem is compatability between the easements over adjacent parcels. Adjacent parcels, one protecting ducks and the other protecting foxes. Combining GPL and CC is the same way, for example. More flavors lead to more problems.

The problems could be worse int he cultural realm because there are only so many real parcels that can be physically near each other. In the cultural context, millions of works can all be next to each other.

Siva Vaidhyanathan’s comments are posted on his blog. He didn’t get to all of them in his allotted time, but I encourage you to read the whole post.
Molly’s response:

This has broad implications, not just for culture. Property talk is deployed in strange ways, in dense ways, but it’s really a simple and natural set of rules about freedoms.

Questions:

Larry Lessig: What? No notice in the public domain?

van Houweling: That’s right. No notice means copyrighted, not PD, because of the current copyright rules. So therefore we need the Eldred Act.

Lemley: Minor comment — it’s worth noting, vis-a-vis the notice problem, whose job it is to trace the licensing in OSS packages and tell people how they are constrained. Notice problem can be solved where there’s a market incnetive. Heretical comment — property-based conservation has a checkered past in the environemntal movement, since it plays into the hands of the property system itself. It masks the problem and avoids government regulation. Does Free Software and CC playing the role of the nature conservancy in the good sense but also the bad sense, providing cover for the property system?

Siva: One of the problems wiht conservancies is that they may be preservationist but not ecological.

van Houweling: I don’t know the answer — it’s partially an empirical question. Elkin-Koren thinks the same as you. The response is that nobodyt experienced the propertization before, and this helps them experience it. I don’t know that the benefits are worth those collateral problems. We shouldn’t have to rely on uncertain freedoms to build our culture.

Benkler: Collaborative production serves as an object lesson in proving the inefficiency of the property right. We are showing that it can happen without copyright.

Oren Bracha: The projects are second-best projects. The best thing would be to change the copyright system. We know it won’t happen any time soon. What do you do in the mean time? Go for second best. Use the system against the grain of the system. Part of what you’re hoping to do is create cultural practices — things that people actually do. Practices create ideology and political support for the first-best solution.

van Houweling: It’s hard to get out of that difficulty. We go forward recognizing these possible incompatible goals.

Peggy Radin: We’re in a non-ideal state. How do we get to a better place? Implement the first-best or go with the second-best? There arises a dilemma. Are we going to create support for the status quo?

Jamie Boyle: Is the GPL just another reason for enclosure? Will the need for a commons lead to greater property rights?

van Houweling: We need to think about other models for making a commons other than building it out of property rights.