Technologies of Servitude Understanding Firmware TPMs as Interests in Personal Property

Widespread computerization and embedded system design has facilitated the pervasive and latent implementation of technological protection measures (‘‘TPMs”) to restrict device firmware access. Often referred to as ‘‘digital locks,” these restrictions impose a whole host of limitations on how owners use and manage the increasing number of products and devices in which they are incorporated. In many cases, TPM restrictions can prevent activities with social, environmental, and economical benefits, including repair, repurposing, and interoperability. In response, governments around the world are now revisiting and scrutinizing their TPM anti-circumvention laws within copyright and competition policy. Beyond these perspectives, this article looks at firmware TPMs’ impact on personal property ownership. It examines whether the common law of property and its hostility toward personal property servitudes can assist in guiding future TPM policy. It reveals overlap between personal property servitudes and firmware TPMs on account of the lack of notice, durability, lack of standardization, and increased information costs on third parties. To ameliorate these impacts, it proposes that policymakers take guidance from tangible property law by requiring device manufacturers to provide notice of firmware TPMs, carry out research to prescribe technical standards and classification of TPMs, and impose temporal limitations on their legal enforceability.