Seemed like a good idea at the time

Early this month, Chris Suellentrop suggested that we all Abandon Ownership! Join the Rentership Society! Suellentrop noted that he and his wife barely broke even on the sale of two condos, while they were able to save money renting, and had the flexibility to adjust to economic downturns. Something else about the article caught my attention. His wife described their decision to sell their automobile and use rental cars when the need arose as "Netflixing a car."

We are certainly gravitating toward a rentership society with regards to our intellectual property consumption.  While some resist the shift by continuing to purchase corporeal embodiments of mass media in book, CD, or DVD format, others fully embrace the rental life with monthly subscriptions to Rhapsody / Zune music subscriptions instead of purchasing music, in either physical or MP3 formats. Just this week, Netflix began offering a streaming-only service for consumers no longer interested in receiving and returning DVDs. Suellenpost suggests the winner of the ebook market will be the company that figures out rental services for ebooks.

In many ways, I wonder if those holding on to the vestiges of an ownership society are simply fooling themselves - or being fooled. The key feature of digitally intermediated services offering intellectual property works, whether for purchase or sale, is the clickwrap license. While our principles of contract law are designed to allow private ordering, and built on assumptions about equally situated parties negotiating the details of an arms length business transaction, we live in a world of unilateral ordering, where consumers are offered boilerplate terms that they may take or leave, but over which there is no room to negotiate. This clickwrap world resembles a federalism of contract law, where the best we can hope for is that some company will offer us terms we are willing to accept, and our only option is to vote with our feet (or in the internet sense, our eyeballs).

Of course, much like the winds of legislative change can alter the terms of the service we thought we bought into when move from State A to State B looking for the right social compound from the laboratory of federalism, boilerplate terms change. The default moves with the design of the provider. Facebook has continually reset the default between your public and private information in favor of more disclosure, and most of the changes to its privacy policy have favored complication over clarity. It is only a slight exaggeration to say that managing your privacy settings is nearly as difficult as selecting your prescription drug coverage under Medicaid Part B. This was not the trip for which many Facebook users originally signed up, but it's the ride they are on. Perhaps the phrase unilateral ordering is misplaced, and I should instead use the term unilateral re-ordering.

There is some hope, at least in some states, that unilateral changes in terms of service are not enforceable, and may constitute a breach of contract. Nevertheless, if iTunes soon tells me that the terms of the deal have changes, and I now need to rent from them the mp3s I thought I purchased those many months ago, it may no longer seem like the deal I signed up for at the time, but it also may not be a surprise.