We are surrounded by “Buy Now” buttons — small clickable icons on the Internet that prompt us to “buy” this song or that, this book or that. But what most of us don’t know is that we are no more buying those products than we are buying library books. And in many cases, their sellers retain the right to snatch them back from us anytime they like. Not long ago, I participated in a forum sponsored by the Commerce Department and the U.S. Patent and Trademark Office about buying online content. You wouldn’t believe the ideas the big media companies were trying to sell: They want us to give up our most basic freedom — to own what we purchase. It may take government to protect that right, although I hope not. From the conversation in that forum, which was convened to discuss the relevance and scope of ownership in the digital environment, we were led to believe that if these content industries had their way, none of us would ever own anything again. We could only “license” books, movies, music — anything, really — on their terms and at their discretion. By not “owning” these items, we would therefore be subject to every corporate whim, rising costs and the business failure of these companies for the rest of our lives. I spoke against this then. I am speaking against it now because many of us don’t know how our rights are being siphoned off — and how much worse it could get. It’s already pretty bad. We all think we purchase MP3s online, download e-books and stream movies. In the intellectual-property circles in which I travel, there has been a great deal of discussion about the realities of ownership of digital goods. With the general public, not so much. We are attracted — and have become accustomed — to the convenience of rapid purchases and on-demand content. When it comes time to move our online MP3 collection or transfer digital content to another device, then we face a surprising reality: We do not really own our electronic music, books and movies in the same way we do when we purchase physical books, CDs, records or DVDs. This disconnect strikes even the most technically savvy consumer, and invariably we realize the true frustration of our state of non-ownership. “Didn’t I click a ‘Buy’ button when I purchased this?” we ask. At the heart of this disconnect is the intersection of copyright law and contract law in the digital consumer space, where consumers’ expectations are nullified by a four-page license agreement from an online music vendor (such as iTunes) to buy a 99-cent song that no one reads. When Amazon, iTunes or any digital retailer explicitly says “Buy Now” and the consumer clicks that “buy” button, there is a definite presumption of purchase, and, with that purchase, ownership. That presumption, however, is not reflected in reality. In fact, clicking a “Buy Now” button means we are entering a contract governing a long-term relationship. Retailers can delete consumer content without warning. Under their setup, we can’t resell music tracks we’ve tired of or give them to a local charity, as you can with used books and records. Sometimes we can’t even transfer it between our own phones, tablets or computers. Some people are in on the secret. Lawyers and media retailers know that we don’t own the e-content we purchase. And they also know that many consumers will not take the time to read a four-page agreement for a 99-cent song. They treat our digital music and e-books like the software industry treats its products, whether we like it or not. Not one consumer has “owned” a copy of MS Word, PowerPoint and other programs on our computers since the 1990s. We are all renters; we simply lease this software. The big media companies don’t want us to own it, which is why they are trying to sue a small company called ReDigi — which believes we should own our digital material — out of existence. Kyle K. Courtney, an attorney and librarian, is copyright adviser for Harvard University working out of the Harvard Library Office for Scholarly Communication.
Posted on: Tue, 13 Jan 2015 05:44:00 +0000
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