Who Owns Your Bits?
I am sure everyone who is reading this has purchased bits in their life—software, iTunes downloads, or computer games. It is a simple enough process, very similar to buying any other product it would seem. You pay the money and the bits are delivered to you, through those Internet tubes or on some media.
The question is: do you really own any of it?
Traditionally, property rights govern things that we buy; we are free to do with them as we please, as long as we obey the laws of the land. You buy a car, you can do whatever you want with it as long as it is legal. The weak control that the manufacturer may exert over you is based solely on other agreements you may have with companies—you could void the warranty or the service contract—but never exert complete control over every use you make of it until death do you part.
In the realm of bits, we have gotten used to End User License Agreements, those lengthy documents that we quickly scroll past in order to click through the easy-to-locate “I Accept” button. But which other product in history has come with an implicit (and lengthy) Terms of Use?
Downloading an iTunes song, for example, means you have agreed to 11 terms of use, ranging from the number of burns per playlist to the prohibition of using purchased songs as ring tones. Do you know what you are agreeing to every time you click that I Agree button?
Of course, a lot of this may be old news to many of you, but the idea behind these unreadable Terms of Service, End User License Agreements and such is coming under some attack. There is some legal precedent being established that may challenge the manufacturer’s ability to control the use of their product.
A California man has been sued by Universal Music Group for selling promotional CDs. These CDs come marked with a label saying “promotional copy, not for sale.” The case rests on the question of whether that text is enough to prevent the traditional First Sale doctrine which holds that the copyright holder is entitled to proceeds from the first sale of a copy, but not of every subsequent re-sale. It is what keeps eBay and used book/music stores alive.
Universal claims that these promotional copies are still owned by them and had only been “leased” to people such as radio hosts. This is the same argument software manufacturers use—that software is only “licensed” to users, not sold, and so any subsequent use is still controlled by the end-use license. Commonly known as “shrinkwrap licenses,” they have been challenged in the past and this case may further undermine their power.
Another event that brings these licenses to the front page of the right sort of news outlets is the recent notices sent by Google to people who had purchased or rented video from their Google Video service. The notices said that the videos would stop working after the 15th of August, because the service is shutting down. I’m sure all those Google customers thought they “owned” those videos, the way I believe that I own my car, my DVDs, and yes, even my iTunes downloads. Though my confidence in my car and DVDs is well founded, my iTunes downloads are on shaky ground.
Consumer rights, consumer rights! Wherefore art thou, consumer rights?
NOTE: I know I can burn and rip my iTunes downloads to turn them into MP3s. I know I can buy MP3s from iTunes. I am simply drawing attention to the pathetic state of consumer rights in the name of protecting copyright and intellectual property rights in digital media. Sure, there may be ways to circumvent the EULAs; my point is that we shouldn’t have to.
del.icio.us
Digg
Facebook
Slashdot
StumbleUpon
Comments
A EULA has never had to be defended in court, and I think if it came to it, the courts might actually side with the consumer. Contract law is a tricky beast and it’s never been made clear that clicking “Accept” actually constitutes a valid contractural agreement.
The problem is it will likely never get challenged. A corporation wouldn’t want it to go to trial because they might lose, which would set the precedent that all EULAs are worth less than the paper they’re not written on.
On the consumer side, who has the money to actually challenge a large corporation in a protracted legal battle?
So the situation with EULAs will likely continue with one side never wanting to challenge or be challenged by the other.
On a different note, the Google video issue *may* bring to light the problem with the subscription-based DRM model to consumers… but then again, it might just disappear in a puff of consumer apathy.
Unlike plain-vanilla consumables like bread, produce, meats, and such, consumer purchases such as music CDs, DVDs, and other medias, the consumer is not really “buying-to-own” the content but “buying-to-use” such content. Consumer Rights can be baffling, indeed, when both actions “feel” to be the same.
The First Sale Doctrine, as mentioned, governs the sale of the original “ownable” physical item - books, plastic media CDs, DVDs, videotapes, etc and later resold in another transaction. In such, the doctrine does not give one implicit or explicit rights to resell the content itself. Jacked or ripped copies are still considered illegal to resell for the foreseeable future.
So, does clicking “I Accept” to quickly proceed to the installation constitute a binding contract? It appears to be so but like VB mentioned, it is still has to be challenged in a trial. There has been sporadic court precedence in the past, namely that ex-Disney employee who counter-sued (and eventually won, I might add) his former employer for suing him from reselling old cel paintings of classic Disney movies. Then again, cel paintings are not even close to CD/DVD content and neither is iTunes downloads.
As to who owns the bits you buy? The “bits” you own but the form and function those bits will resemble to you and everyone else is not, unfortunately.
Our Consumer Rights is not boundless, after all.
Universal claims that these promotional copies are still owned by them and had only been “leased” to people such as radio hosts.
The problem is that the music industry almost single-handedly dictates our rights and laws regarding intellectual property.
For example, Universal claims that music is licensed to the end user when discussing the limitations of consumer rights. BUT, Universal claims a sale of that same music when discussing royalties paid to musicians because licensed work (eg commercials, music for soundtracks, etc) pay a substantially higher percentage.
That’s why when people defend the music industry, Apple and DRM as “getting the money to the artists” I have to laugh at such naive stupidity.
“On a different note, the Google video issue *may* bring to light the problem with the subscription-based DRM model to consumers…”
Google videos were not subscription based. You “bought” them like you do with iTunes. The Google video issue brings to light the problem with DRM - period.
In fact, that’s the whole point of DRM. If Apple or the music industry wanted to, they could completely disable all of your purchased music overnight, just as Google has done with videos. When you buy a song from iTunes, you are giving them that power.
The problem is that the music industry almost single-handedly dictates our rights and laws regarding intellectual property.
For example, Universal claims that music is licensed to the end user when discussing the limitations of consumer rights. BUT, Universal claims a sale of that same music when discussing royalties paid to musicians because licensed work (eg commercials, music for soundtracks, etc) pay a substantially higher percentage.
“On a different note, the Google video issue *may* bring to light the problem with the subscription-based DRM model to consumers…”
Google videos were not subscription based. You “bought” them like you do with iTunes. The Google video issue brings to light the problem with DRM - period.
I agree, I agree, I agree.
If Apple or the music industry wanted to, they could completely disable all of your purchased music overnight, just as Google has done with videos. When you buy a song from iTunes, you are giving them that power.
While in the theoreticalest of theory this is right, the music industry could not do this for the simple reason that Apple would never, ever consent to it. Imagine the repercussions if Apple issued an iTunes update that wiped our music, even if it refunded it. They would lose huge numbers of customers. Most importantly of all (lol), their stock price would PLUMMET. Apple is invested in keeping their consumers’ iTunes DLs working, and no amount of weaseling from the music industry will get them to do something as catastrophic for their business as this.
This is the fundamental difference between a subscription DRM model and a purchasing DRM model: in the former, the content can be made to vanish after purchase. In the latter, it cannot.
That is to say, Google videos <b>were in fact subscription based</b> for all intents and purposes. This is a useful distinction and a useful lesson for us all: before buying anything of DRM, ask if it is technically a subscription, be it in perpetuity as a subscription to a web service, or traditionally. Could the stuff conceivably be taken away after purchase? Never buy anything DRM’d that you want to OWN if the answer is YES.
The answer fundamentally is NOT yes for iTunes because it would never benefit Apple to retract our purchases - INDEED that would be against the contract they enter into with the purchaser. Even in the case that such an action was to occur it would also have to be through an iTunes update. This would give us ample (infinite, really) time to strip the DRM from our libraries for the cost of one CD-RW.
That’s why when people defend the music industry, Apple and DRM as “getting the money to the artists” I have to laugh at such naive stupidity.
I have never actually heard anyone say that but they would indeed be worthy of ridicule.
<i>That is to say, Google videos <b>were in fact subscription based</b> for all intents and purposes. </i>
No they weren’t. Google video worked exactly like iTunes. You purchased a video for a set price, it was riddled with DRM that restricted your rights, but other than that it was yours as long as the seller let you play it.
Apple would never, ever consent to it.
Yes, I know including Apple in a discussion of DRM (despite them being the number one purveyor of DRM infected content) rankles the fanboys, because Apple is soooooo benevolent and DRM is sooooooo unobtrusive and harmless when APPLE does it.
I’m sure people thought Google would never do such a thing either.
It’s entirely conceivable, and not at all improbable, that Apple could create a NEW store or format in the future that effectively makes your existing music/video purchases obsolete and unusable.
This does in fact happen all the time in the music and movie industries. VHS? Dead. Laserdisc? Dead. 8 track tapes? Dead. Vinyl records? Dead.
The difference then and now is that DRM is simply more effective at restricting your rights (within the bounds of the law of course).
This would give us ample (infinite, really) time to strip the DRM from our libraries for the cost of one CD-RW.
Yes, let me just take these videos that I bought from the iTunes store and…wait…oh that’s right. I can’t.
Thanks Beeblebrox- you said a lot of what I would have.
What Benji seems to miss is that you need Apple’s permission (even though it is not a subscription service) to listen to music you purchased from them. You need to authorize your computer. The point is not that Apple will revoke your music; it is that some day- for such is the way of businesses- Apple will either go out of business, get acquired or decide that the music business is not worth keeping around.
At that point, all your downloads are worthless (except for the ones that you can burn and rip, forcing a degradation).
What I was saying is that Apple is not going to destroy our purchases - that is, they will be listen-to-able under Apple’s system for a very long time indeed. If you need to instate the idea of Apple going out of business or being acquired or.. cough.. “deciding that the music business is not worth keeping around” (eh?) then it is quite clear that we have something long lasting on our hands.
What’s more, if that did happen, development of the DRM would stop it would inevitably be cracked by someone like DVD Jon, and freeware software would spring up allowing us to export our libraries.
Of course, we could do that anyway with CD-RWs for nothing.
I’m sure people thought Google would never do such a thing either.
Apple will within the next couple of years have sold TEN BILLION SONGS over iTunes. And you REALLY BELIEVE they might give back say FIVE BILLION DOLLARS to their consumers? Are you INSANE?
It’s entirely conceivable, and not at all improbable, that Apple could create a NEW store or format in the future that effectively makes your existing music/video purchases obsolete and unusable.
I say that it is entirely inconceivable. Why on earth would apple ever benefit from doing this and making it incompatible with one of their greatest successes, the iPod universe?
Yes, let me just take these videos that I bought from the iTunes store and…wait…oh that’s right. I can’t.
That is very true. I was going to add a comment on that after my other comment. It is very difficult to imagine where the future of download-to-own movies is going, with the advent of broadband and labels’ refusal to allow non-DRM’d downloads.
For digital (downloaded) videos I actually SUPPORT a DRM-based ‘exploding content model’. Specifically, I think internet rentals will be a great way to distribute movies. This of course is not what Apple is doing at the moment, and the broadband technology is not quite ready for it in third world countries like the US and Britain. But I cannot see the Studios allowing DRM-free download-to-own movies, and interoperable DRM is impossible, so I cannot see a good future for movie downloads that adhere to fair use and can be played on a wide variety of players.
But what would you suggest Apple do? Or, if Apple supported your view, what exactly would they be doing differently from what they are doing now? Try to negotiate other labels adding DRM-free content? Well I gotta break it to ya, that’s what they are doing (for music - for video it’s next to impossible).
Of course, neither of us know for sure the true extent to which apple is lobbying for DRM-free music on iTunes. You are inclined to read Jobs’s “thoughts on music” as disingenuous; I personally read it on the merits of its arguments and find it promising.
The point here is, Apple allowed the music labels to dictate DRM terms to them for the first few years of the iTS. No label would at that time have consented to a digital store without DRM.
Now that Apple has market dominance, Steve Jobs has come out in favour of dropping the DRM for all music. I laugh imagining the same thing happening at Microsoft.
Apple has made some headway with adding EMI and Indie labels DRM free (and higher quality, which is grand). This is obviously only the beginning. But it is fundamentally the Labels who are actually in favour of DRM here. Can you imagine Apple saying “no” if Universal called up and were like “we’ve just had a big round-table here and… you know what… we realised DRM isn’t doing actually anything for us at all… and consumers have a right to get their media with cross-platform compatibility”.
I recap:
Apple wants to get rid of DRM! Wake up!
I’d like to add one thing.
PLEASE, UNIVERSAL, PLEEEAAAASSSSEEEEEEEEE