We’ve
all been there, you show up to a party empty handed, no gift for the host, no
gift for the birthday boy. Even your friend’s dog brought a gift.
Now, being the smart person that you are you
sneak off to the coat closet, hop on Amazon
and buy a digital gift for that obviously not so special someone and send it to
them in their email. Later if your friend’s dog asks if you brought a gift you
can tell him to check the host’s email.
You are
not alone in the world of purchasing digital content in fact, “65% of internet
users have paid to access or download some kind of digital content” according
to the Pew
Research Center. [1] 33% paid for software, 21% paid for apps for their
cell phones or tablet computers, 19% have paid digital games and 5% paid for
“cheats or codes” to help them in video games. That leaves us with a couple
questions, are we paying to own these digital products or are we paying to
lease them? What happens if we built up a library of digital content from a
company and that company shuts down? Are we still entitled to those digital
products because we bought them or are we left to finally go outside?
First,
we will look at something called, conditional sales. A conditional sales
contract is “a sale of an asset in which the buyer assumes possession and may
have use of the asset, BUT the seller retains title and may repossess the
asset.” [4]
The government is playing catch up as far as laws go within the context of
digital content. For now, it is mostly up to the providers of the digital
content with how they choose ownership of the goods. To put it another way, the
issue might be when we click a digital button that is labelled “BUY,” we would
expect that we’re buying something but we aren’t buying anything at all, we are
actually buying a license to use that digital content.
The
grey area between who owns the content has had some light shed on it in the
past couple years. Particularly with the Supreme Court ruling of Golan v. Holder.
This ruling speaks about the first-sale
doctrine. “The first sale doctrine is the provision in copyright law that
gives the purchaser of a copy of copyrighted work the right to sell or
otherwise dispose of that copy without the permission of the copyright owner.” [5]
This is how movie rental sites like Netflix and Redbox are able to lend DVDs
without authorization from studios.
First
sale doctrine however does not apply to software and other mass licensed goods.
This brings us to, “drum roll” the Copyright
Act. Existing copyright case law makes it clear that digital copies of works,
even those stored only in RAM, are just that, copies. The copy is, “tangible
property owned by the purchaser; copyrighted work embodied in the copy is
intangible property owned by the author.” [3]
A copy is a copy is a copy. In a nutshell, software copyright owners don’t only
own the work embodied in the copy, they also own every single copy. Which for
consumers leaves us just like the man at the party without a gift, *hint*
*hint* feeling pretty crappy.
So what
does all this mean for those of us that may have an extensive game library on
Steam or a library on your kindle that would put any brick and mortar library
to shame? Steam did say that if they were to ever go out business that they
would patch all their games so that you could play without their client. That
is a nice sentiment but it doesn’t say anywhere in their EULA or terms of
service that this would actually happen. A woman was also featured in an
article from NBC News about not being allowed to access her Kindle library of
43 books because her account was turned off by Amazon without notice. Amazon’s
PR service replied with this statement from NBC “Per our Conditions of Use
which state in Part: Amazon.co.uk and its affiliates reserve the right to
refuse service, terminate accounts, remove or edit content, or cancel orders at
their sole discretion.” [3]
This is yet another reminder that we aren’t simply paying for an item we are in
fact buying a long-term lease on an item which can be revoked at any time.
If you’re buying digital content
for the sake of time, think first about how much longevity you see yourself
having with an item and if it is better to buy a physical copy for future use.
Normally digital content if it is new, is priced pretty close to the same
amount as a physical copy. If you can shell out a couple extra bucks and buy
the physical copy, then go for it or put the fate of your digital content in
the hands of the digital gods. Your choice.
Sources for this article are as
follows:
1) Pew Research Center “65% of
internet users have paid for online content.” By Jim Janesn
2) “Do you own your digital content?”
By: Hilary Osborne of the Guardian
3) NBC News “You don’t own your Kindle
books, Amazon reminds customers.” By Joel Johnson
4) “Conditional Sales” referenced from
financial dictionary
5) “The Digital Death of Copyright’s
First Sale Doctrine” by Annemarie Bridy of freedom-to-tinker.com
Follow the author of this post around
on the internet. Mike can be found on these sites. He can also be found teaching
young children and getting beat down mercilessly by a Chillwind Yeti.
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