Mobblog : The New Servitudes

Molly asks how servitudes are different from plain vanilla contracts that aren't read and understood.  There is probably little difference from agreements that are not read.  But what of the plain vanilla agreements that are read.  At least then, the consumer can ask the purveyor about the content of the agreement.  By contrast, with IP servitudes, the person with whom the consumer deals to explain the agreement; that person has no stake in enforcing the agreement, and probably has no interest in (and limited knowledge of) the terms of the agreement.
       Perhaps even more important the consumer has no effective way to renegotiate the agreement.  While renegotiation may be difficult with plain vanilla form agreements (especially over low-value items), the cost of renegotiation is even higher when the consumer has to locate the holder of the servitude.  This is not a significant problem with the typical land servitudes, but is a considerably greater problem with IP servitudes, especially in a copyright regime which requires so few formalities.  It may not be difficult to locate Microsoft, but if IP servitudes became more pervasive, so would the problems of locating the copyright holder (or holders).

Comments

[geoff]

It seems to me that this argument leaves out the essential point that competition restrains possible "abuse by contract," not unit by unit negotiation of terms. All of the examples mustered by Molly and Justice Breyer are nice hypotheticals, but are they really likely in practice? Moreover, there is a real case to be made that the opportunity (and even worse, the acutality) of renegotiation of terms in these cases would be terribly inefficient. In other words, the inability to renegotiate may in fact be a feature, not a bug.