Consumers of digital media will witness an important milestone in April when Apple's iTunes Store figuratively blows out the computer-generated candles on its virtual 10th birthday cake. Starting in 2003, just a few years after digital music's origin as pirate's booty on the high seas of illegal file sharing, consumers could open an account, search for songs, point a cursor at the “buy” button on their computer screens and download a brand new track, all in just a few seconds.
These days, digital retailers such as Amazon and Apple offer books, movies, television shows and music for instant downloading, and with the advent of smartphones, e-readers and tablets, people can enjoy these things almost anywhere. But when someone points to a “purchase” button on Amazon.com to download the latest James Patterson novel to their Kindle Fire, what are they actually purchasing?
The answer resides in lengthy expanses of legalese known as end user license agreements, or EULAs.
These documents often pop up when a user downloads a program such as iTunes, or they are stuck behind links at the bottom of the screen called “terms and conditions” or “conditions of use,” the titles of which are a lot less compelling than “What's Hot” or “25 Exciting Books This Week.” They are usually free of graphics and ponderously long, with entire sections written in all-caps.
Not surprisingly, few people actually bother to read a EULA. According to Measuring Usability, a Denver-based quantitative research firm, fewer than 8 percent of users read the EULA in full, and the average time that most people spend looking at these pages is 6 seconds. Their reputation for being impenetrable prompted the tech media website Cnet.com to invite actor Richard Dreyfuss to perform a dramatic reading of the iTunes EULA in 2011.
Concept of ownership
But wading through the turgid language could be worth more than six seconds for consumers unfamiliar with the shifting concept of ownership in the digital era. The most important word in “end user license agreement” is “license,” because most digital retailers are selling the legal right to limited use of their products.
“The content owners say that they are giving you a license, not selling you a copy,” said Sarah Burstein, professor of copyright law at the University of Oklahoma College of Law.
In most cases, people who purchase e-books, digital music or downloadable movies do not have the right to resell these products. Burstein said this restriction has been around since the advent of software, products with little or no physical presence. Old books, magazines, DVDs, compact discs and vinyl records can be resold, a right protected by the first-sale doctrine, an important provision in U.S. copyright law stating that the purchaser of a new copy of a book can then dispose of it as they please — give it to a friend, put it in a bin at a garage sale, or sell it back to the campus bookstore.
In contrast, digital media buyers cannot pass along their used megabytes. As the iTunes EULA cautions, “You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the iTunes Service in any manner.” And if Amazon discovers that a customer has violated provisions of its terms, “your rights under this Agreement will automatically terminate if you fail to comply with any term of this Agreement. In case of such termination, Amazon may immediately revoke your access to the Service without refund of any fees.”
If access to the service is revoked, then the books, movies and other digital media to which the user purchased rights through that service will simply be gone.
And sometimes, the user does not have to be in the wrong. In July 2009, early Kindle adopters discovered that Amazon had pulled books off their devices and credited those customers with $9.99 on their accounts. Ironically, the book was George Orwell's “1984.” In that case, a publisher who had provided “1984” and Orwell's “Animal Farm” to Amazon for Kindle distribution did not have the rights to publish the works, but customers still discovered the ephemeral nature of ownership in the digital world. If it had been a paper copy of “1984” that had been wrongly published, Amazon could not break into a customer's house and confiscate it.
“But if it's just a license, you can terminate the license,” Burstein said. “So that's the biggest change — that you don't really own these things.”
Burstein said that such companies have a solid economic defense for such policies: digital versions of such media are usually far cheaper than their physical counterparts.
Consider the cost of Walter Isaacson's 2011 biography, “Steve Jobs.” A hardcover copy of “Steve Jobs” can be bought online through Barnes & Noble for $19.66. But Barnesandnoble.com also sells a digital version for its Nook e-book reader for $9.99. For half the cost, customers can read the same book, but they must agree to Barnes & Noble's terms of service. In addition, electronic books can be corrected in the event of flawed editing through a massive online batch replacement by the retailer.
Customer push back
But customers are starting to push back at the provisions of some EULAs. This month, gaming company Electronic Arts came under fire from users and online tech journalists for the license agreement distributed to early testers of the next generation of “Sim City.” According to arstechnica.com, EA's EULA stated, “If you know about a Bug or have heard about a Bug and fail to report the Bug to EA, we reserve the right to treat you no differently from someone who abuses the Bug. You acknowledge that EA reserve [sic] the right to lock anyone caught abusing a Bug out of all EA products.”
A few days later, EA told Forbes.com that it was revising its EULA, saying that “the language as included is too broad.”
Burstein said that there are discussions in academic circles about creating copyright allowances that would make the digital realm a little more like the physical world, at least when it comes to ownership. One idea bandied about is a “forward/delete” function that would allow the original purchaser of digital media to either gift or sell that item once, to one recipient. She said that such a development would only take place if there was sufficient outrage and more people read their EULAs, but that the more tech-savvy copyright experts are starting to pay more attention to the issue.
“People are starting to chafe at this,” Burstein said. “They're saying, ‘I bought my iTunes. Why can't I pass them on to my kids?'”
People are starting to chafe at this. They're saying, ‘I bought my iTunes. Why can't I pass them on to my kids?'”
Professor of copyright law at the University of Oklahoma