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.”
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