THE STRATEGIC LAWYER + + + politics.::. get the jist.::

From Owning to Licensing

Most of us who have moved to digital platforms and cloud storage or backups (ipod, ipad, kindle; itunes, ibooks, kindle store) understand intuitively that in some way, the nature of how we own these things has changed. This new form of “ownership” is different to the single, tangible copy that we have owned of any given print book, cd or dvd. Some of us have felt justified in making copies of those tangible items for our personal use (and for that matter, some felt all right about handing those copies out to friends and family upon request). But generally, we had our tangible copy, and we’d use it, and if we didn’t have it handy, we weren’t able to use it. In addition, we had the ability to alienate this property. We could give or sell our single copy to someone else, at which point we would no longer have possession, nor the right to use the property, and someone else would.

With digital media, we have the convenience of pulling down our books, music, videos and other media from the cloud into multipel devices, depending on where we are and what we have handy. But, because they’re so easy to copy and redistribute, the nature of our rights of ownership in these things has generally become a license to use rather than actual ownership as we knew it in the context of tangible copies of media.

This recently came to the fore in what turned out to be unsubstantiated rumours about Bruce Willis wanting to bequeath his extensive iTunes collection to his daughters, and learning that he could not do so under the terms and conditions of his purchase. While his position on the subject might have been overstated, the news item gets at the underlying issue of this change in the nature of how we own things. When we pay for a song or a book in tangible form, we can use the single copy all we want, and then we can sell it or give it away. When we pay for a song or a book through a digital marketplace, we no longer have that right. The 99 cents we pay for a song on iTunes gives us the unlimited right to listen to it/read it/ watch it. But the only way we can bequeath it is by giving our heirs the device on which we have stored the media–and once user account is de-activated, the device becomes obsolete or non-functional and our heirs can no longer get at that media, it’s gone.

This may be good, or bad, depending on your perspective (if you don’t like clutter, it might be preferable to receive a parent’s book collection on his or her kindle, to parse through, read and delete, without having to cart out boxes and boxes of books).

Another, potentially more problematic implication of this license to use is the ways in which the licensor can revoke the licensee’s right to use things she has legitimately paid for. In some cases, this can be done without warning or explanation–as happened to a kindle user in Norway, recently (the article contains a good discussion about the topic in general and issues like availability of media in different territories and how e-tailers are dealing with such questions). One day, you have a book collection for which you potentially paid thousands of dollars, the next day, it’s gone. Breathtaking.

But it’s a change–and one worth thinking about in the context of your beloved media collections.


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This entry was posted on November 1, 2012 by in DRM/TPM, Licensing, Op/ed and tagged , , , .
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