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Copyright Week Day 4: Theft By Fine Print

January 16, 2014 ,

It's Copyright Week! From today through Saturday, a number of groups around the Web will be exchanging ideas, information, and actions about how to fix copyright law for the better. Each day will be devoted to a different aspect of copyright law. For more on Copyright Week, see here.

Today's focus is on how copyright law balances the rights of someone who wrote a copyrighted work and someone who bought a copy of it. This post looks at how fine print can throw that balance out of whack.


It should be a simple proposition: if you buy something, you own it. But unfortunately, copyright law has at least three ways that it breaks that simple maxim. The first is that, at least for digital downloads, copyright law won’t let you transfer a file without also handing over the disk it’s stored on. So unless you’re willing to hand over your entire hard drive, you can’t lend that mp3 to a friend. We’ve talked about this problem before, in blog posts, a white paper, and even in video form.

The second way copyright law can keep you from actually owning the things you buy is if there are technological locks—known as DRM (Digital Rights Management) to some, or TPM (Technological Protection Measures) to others—placed on the copyrighted works. Even if you own a DVD and have a perfectly good, legal reason to copy it, breaking the DRM on your DVD so that you can copy it is itself illegal. We’ve talked about this, too, and a number of other people today are discussing it as well.

But in this post, I want to talk about the third way copyright law can keep you from owning something you’ve already paid for. In some ways, it’s the simplest, which is what makes it so frustrating. Essentially, it comes down to the idea that, with the right fine print, a seller can claim you never bought something to begin with—even if you paid for it, took it home, and had it sit on your shelf for years.

Magic Words

This comes from the End User License Agreements (EULAs) that are routinely attached to software. While they are often pages-long jumbles of legalese, the part we’re concerned with today is a short sentence that usually comes at the beginning. Typically, it says something like

 

This software is licensed, not sold.

 

What this sentence is trying to claim is that you don’t own the copy you just paid for. I’m not talking about any rights to the copyrights in the program; clearly you don’t own any copyrights in a piece of commercial software you didn’t write; I mean that, unlike the book on your desk, you don’t even own the particular copy of the program that is sitting on your own hard drive. And if that’s true, that means you can’t move it, resell it, or possibly even use it without getting the copyright holder’s permission first.

This shouldn’t be the way things work; in fact, one of the most famous cases in copyright law was basically a rebuke of this sort of fine-print chicanery all the way back in 1908. At the beginning of the 20th century, a group of publishers decided they didn’t want their books to be sold or resold at a discount that would undercut their initial prices. So they printed a notice in the front of their books that said:

 

The price of this book at retail is $1 net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright

 

Macy’s, though, decided it wanted to put some of these books on sale, for eight-nine cents. The store was sued, and took its case all the way to the Supreme Court, which said that no, you can’t sue someone for copyright infringement for selling it after you’ve sold them that copy. In other words, you can’t try to control the physical object throughout its lifetime after it’s changed hands. You can’t come back, years later, after Macy’s has sold the book to someone else, and sue that person because she wants to sell it again. You, the publisher, never entered into any agreement with her, and that little boilerplate notice in the front of the book won’t give you the power to basically lay a legal curse on that paperback.

Even today, courts are naturally suspicious when copyright holders try to restrict ownership of copies by using some “magic words” attached to the copy. A few years ago, a federal appeals court in California said that no, records labels that distribute CDs that say “PROMOTIONAL USE ONLY—NOT FOR SALE” couldn’t stop someone from reselling them. Even a more elaborate “licensing” statement wasn’t enough to overcome the commonsense take on the situation: you gave someone else a CD. Once they own it, you can’t sue them for trying to use it in a way you dislike.

But once we move into the realm of software, courts start thinking differently. Courts that might have a strong gut reaction against a copyright holder using fine print to claim physical ownership of a book or a CD might not have such an immediate sense of the wrongness of doing this with software. After all, we’re used to having these long, unreadable EULAs on software, and we’re used to having lots of different kinds of business arrangements for getting software—including buying it, but also subscribing to it or paying for one-time installs. But do we really want to say that every single piece of software we own is actually rented—that all those aging CD-ROMs on my shelf actually belong to Microsoft? That the sectors of my hard drive that hold Team Fortress 2 are actually owned by Valve? (Should I be charging them rent?)

And then what about born-digital media or downloads that look like software? Those can just as easily come with the same bunkum licenses as software. As more and more movies, music, books, and other forms of media become available as digital downloads, our libraries increasingly become not-ours, and all because of some bogus fine print that bears as much resemblance to reality as those NFL warnings that say that giving any “descriptions or accounts” of a game infringes their copyrights.

Can’t Sell It; Can’t Even Use It

What’s worse, not owning a copy of something doesn’t just mean you can get sued for trying to sell it, lend, it, or give it away; when it comes to digital media, you can be sued for merely using it. That’s because, when you use a piece of digital media, whether a computer program, mp3, or mpeg (or whatever video file the kids are using these days), you’re making copies of it on the device that’s playing it. And, unless you’re the owner of that original file, those copies are, according to the law, infringements. Farfetched? Well, not to the game company Blizzard, which sued a developer for copyright infringement on essentially those grounds. Fortunately, the courts sided with the developer on that particular count, but on a closer technicality than makes me entirely comfortable (read one way, Blizzard could have re-worded its EULA and won that part of the case).

You Bought It, You Own It

So how can the law be fixed? Well, for one thing, we can make sure that consumers aren’t being lied to by sellers. When you click “buy” on that episode of Archer, you should actually be buying something, not just making a longer-term rental than when you click the “rent” button.

For another, we can make sure that, when courts try to decide whether a transaction was a sale or a rental, they look to what actually happened in the transaction, and not just what the legalese in a clickthrough EULA says (Here’s a hint: the EULA will never contain surprises that fall in the consumer’s favor. Not if the lawyers can help it.).

Finally, we want to think about what owning things is worth to us. It’s possible for media companies to refuse to sell anything. If they wanted to, book publishers could use a rental-only model, never selling copies, but charging by how long you had a book you checked out from their proprietary library. But they likely know that people won’t go for that as their only option for books. No matter how cheap that rental service might be, people will want to buy books, and they’d be fools to shut down that market, no matter how much it might boost book rentals, and how much they might gnash their teeth at losing possible sales to things like libraries and used book stores.

Hopefully, the digital market can come to the same understanding—a recognition that trying to pretend people will turn their backs on owning copies of media is as futile as asking them to turn their backs on the idea of private property entirely. Because, in the end, that ability to own copies of things—favorite books, albums, movies—is a part of who we are. Because their contents have staked a claim on our minds, we want to own a piece of them in return.