Content, Value and Commoditization

In the last 24 hours, there have been a slew of articles published or noted by the community-at-large on the concept of “free” content and the struggle that old business models are having trying to continue operations when things that used to be scarce (like form contracts) are now virtual commodities.

Some of these articles advocate changing the business model – such as this article that talks about offering “free” versions and then what amount to special editions – customized content that people would pay for since it appeals directly to their interests.  Others, like this post by Jason Anderman (of WhichDraft fame), talk about the economics and business advantages (giving away free content potentially encourages customers to come back to you for paid gigs).  But everything seems to be stemming from Chris Anderson’s latest book: Free: The Future of a Radical Price.  As I’ve not yet read this book (but his other on The Long Tail was interesting, if not challenged by some economists), I can’t really comment on what Chris is suggesting.

But I can comment on the value of free, especially as it relates to contracts, software licenses and other legal forms… and it’s a cliche, but the truth is: You Get What You Pay For, especially in legal forms.  But this is because it’s not about the form itself, but rather, the drafter and the advice you get when using the form.

To understand why legal documents are somewhat of an exception, it’s important to start at a foundational level (with the law) and build up towards the client.  Remember first that within the United States alone, there are 51 bodies of law (each State, plus Federal), not including any of our protectorates or territories… nor considering any of the other 193 US State Department-recognized countries’ laws.  Second, know that within a given type of agreement, there are literally THOUSANDS of potential combinations and permutations of clauses that can be used to obtain a particular goal – and dozens when you whittle down your agreement to only be governed by one or two bodies of law.  Lastly, think about your own personal situation with respects to your needs.  Now look around and ask yourself what other items in your life you use without modification of some sort.  Your home, car, office… even your computer.  All are customized because of the way you plan to use the tool.  Sure, there might have been a framework involved, but who did the customizations?

The answer, with respects to contracts, is a contract specialist and sometimes a lawyer.  They use templates as starting points to prevent the re-invention of the wheel and to make sure that all bases are covered.  But they are only starting points.  As I’ve said in the past, I almost never give/sell/provide my templates to other people because I’m simply afraid that they’ll take them and use them without modification – contrary to their intended use.

In fact, a few years ago, I ran a search to see how many online EULA’s were similarly modeled after Microsoft’s… and was pretty shocked to discover the sheer number that had copied the document word-for-word, including the choice of forum language (venue) for any disputes.  I notified a very distressed company in Australia that they might want to change the language because as it stood, any disputes with them would have to be resolved in King County, Washington (Seattle, Microsoft’s hometown).

So remember that while you might find forms, templates and other legal documents freely available online, you probably need professional assistance to help you customize that document for the specifics of your particular situation.  Don’t be fooled into thinking that one size fits all.  It doesn’t.  AVAILAbility doesn’t equal VIAbility.  (That said, Stephen Guth gives away his license agreements – which are good starting points if you’re looking for a free document.)

1 thought on “Content, Value and Commoditization

  1. Jason Mark Anderman

    This reminds me of the time a client asked me to review his software license agreement. The client’s business operated in St. Louis, MO, which was his only location. He did admit to me that his license was a copy of the MS Windows license agreement, except that he used edit/find/replace to substitute his company’s name for Microsoft. I asked him if he’d ever heard of Bellingham, Washington. He said no. I mentioned that his license agreement stated that, in the event of any litigation between his company and his customers, the case had to be litigated there!


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