Do Not Think About This Post Without Prior Authorization [Jim Gibson's Comments Redux -- Mobblog: The New Servitudes]
One last thought before this very interesting mobblog ends.
As I catch up on the latest mobblog entries, I have the Celtics-Spurs game on in the background, and it strikes me that perhaps the most broadly familiar servitude that accompanies an information good is not the Microsoft EULA or the GNU GPL, but the announcement that we hear every time we watch a professional sports broadcast, e.g.: "This broadcast is the exclusive property of the NBA, and you shall not reproduce it, retransmit it, think about it, or derive pleasure from it in any way without sending us your firstborn and tithing us 20% of your income." (I paraphrase.)
These are Microsoft-EULA-like in their attempt to extend private control beyond that which public law provides -- for example, they often purport to forbid any unauthorized "accounts" of the game -- so they raise the same concerns that Molly articulates toward the end of her article. Yet I think the problem goes farther than that; I'd be willing to bet that the general public thinks that such announcements merely describe the public law rather than add to it through the imposition of additional private conditions. In other words, most people do not realize this is a servitude; they think it is the default state of IP law. (Consider the similar, facially overbroad FBI warning that accompanies every film on videotape or DVD; that warning must be viewed as a statement of the default IP law, as it originates with the government and not with the copyright owner.)
This suggests an added servitude cost to consider, perhaps as a subset of notice costs. Here's what I mean: It's hard enough for the average citizen to know what is and is not covered by copyright (especially given the death of copyright's formalities), and which uses are forbidden. (In fact, given the many amorphous doctrines within copyright, from idea/expression to fair use, it can be hard for even the copyright lawyer or scholar to figure such things out.) But as the average consumer encounters more and more of these "added restriction" servitudes, it may become even harder to know what IP's default rules are. Indeed, as we solve the usual notice problem -- as end users do receive actual notice of the added restrictions (as they probably do in the NBA example) -- this new cost may increase rather than decrease, because it is the added information that makes it harder to know what the background conditions are.
So those who repeatedly encounter restriction-increasing servitudes may come to treat all information goods as if they are similarly restricted, or may incur significant information costs in determining which are and which are not. As with many of the topcis we've discussed in this mobblog, this would be a problem even with the first generation of users, and does not depend on whether the servitude "runs" with the good. Also, note that this negative externality is not as likely when we are dealing with something that is clearly a contract, rather than a unilaterally imposed servitude. Contracting parties are accustomed to giving up something they would otherwise enjoy. I am far from certain that the same is true of those who encounter Molly's new servitudes.
Thanks all -- I've really enjoyed it.