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?'”