It’s Always DRM’s FaultSeptember 18, 2018
There was a recent viral story about Apple “deleting” purchased movies from someone's library. As always with these stories, there's a little more to it, but I'm here to tell you that the details don't really matter. And because this is being published on the International Day Against DRM, I'm here to tell you that it's DRM’s fault.
To get the facts straight: Anders G da Silva purchased movies while living in Australia, with his iTunes region set to “Australia.” Then he moved to Canada, and found that the movies were no longer available for download — due, no doubt, to licensing restrictions, including restrictions on Apple itself. While his local copies of the movies were not deleted, they *were* deleted from his cloud library. Given that movies can be up to several gigabytes in size, and because most people are using devices with SSDs with a few hundred gigabytes in storage rather than multi-terabyte hard drives, it is not unreasonable for people to expect that they can delete large files and redownload them later.
To that rare breed of person who carefully reads terms of service and keeps multiple, meticulous backups of important files, da Silva should have expected that his ability to access movies he thought he'd purchased might be cut off because he'd moved from one Commonwealth country to another. Just keep playing your original file! But DRM makes this an unreasonable demand.
First, files with DRM are subject to break at any time. DRM systems are frequently updated, and often rely on phoning home to some server to verify that they can still be played. Some technological or business change may have turned the most carefully backed-up and preserved digital file into just a blob of unreadable encrypted bits.
Second, even if they are still playable, files with DRM are not very portable, and they might not fit in with modern workflows. To stay with the Apple and iTunes example, the old-fashioned way to watch a movie purchased from the iTunes Store would be to download it in the iTunes desktop app, and then watch it there, sync it to a portable device, or keep iTunes running as a “server” in your home where it can be streamed to devices such as the Apple TV.
But this is just not how things are done anymore. To watch an iTunes movie on an Apple TV, you stream or download it from Apple's servers. To watch an iTunes movie on an iPhone, same thing. (And because this is the closed-off ecosystem of DRM'd iTunes movies, if you want to watch your movie on a Roku or an Android phone, you're just out of luck.)
In other words, even if you had carefully kept a backup of your iTunes purchase, and it still played in iTunes, actually watching your movie might at best involve dusting off some outdated and little-used software and at worst might not work at all. (I know from experience that Apple doesn't focus much energy on ensuring that the experience of streaming an iTunes library to an iOS device is bug and hassle-free.)
My takeaway is that, if a seller of DRM'd digital media uses words like “purchase” and “buy,” they have at a minimum an obligation to continue to provide additional downloads of that media, in perpetuity. Fine print aside, without that, people simply aren't getting what they think they're getting for their money, and words like “rent” and “borrow” are more appropriate. Of course, there is good reason to think that even then people are not likely to fully understand that “buying” something in the digital world is not the same as buying something in the physical world, and more ambitious measures may be required to ensure that people can still own personal property in the digital marketplace. See the excellent work of Aaron Perzanowski and Jason Schultz on this point. But the bare minimum of “owning” a movie would seem to be the continued ability to actually watch it.
Of course, a company might not want to take on that burden. Or its contracts with content companies may not allow it to. There's a simple solution: Don't sell movies with DRM. It might be good customer service to allow customers to redownload DRM-free movies, but at least with those it can be reasonable to tell them that they should just keep backups. DRM-free media files that are in a reasonably standard format can be expected to play on any hardware for the foreseeable future, can be converted to other formats if not, and so on. Consumers really own them, unlike the case with DRM downloads.
To end things on a bit of a positive note, it has been encouraging to see the movie industry make some progress toward allowing customers to access their purchased media on the devices of their choice. Thanks to the Movies Anywhere initiative, you can link your iTunes, Amazon, Google, and so on accounts together, such that movies purchased on one service show up in your cloud library on all the others. (I have no idea how this interacts with the region issue da Silva encountered.) This is actually pretty cool — if you watch all your movies on Vudu but there's a sale on iTunes, you can buy the movie there instead. It's almost as cool as not having any DRM at all! The movie industry, at least, has realized that DRM in general gives platform companies a lot of leverage against them, though creating a captive customer base, and moves like this reduce that. Just think how good it would be for the publishing industry and e-book competition if your Kindle library was accessible on Kobo e-readers, and publishers could sell books on non-Amazon platforms and have them automatically appear in Kindle libraries. Similarly, wouldn't it be better if buying the iOS version of an app also gave you access to it on Android? Where some creators might see a few lost sales, the movie industry has shown that reducing dependence on large platforms is in the interest of creators, and DRM lock-in is a major part of platform dominance.
But still, even with incremental progress like Movies Anywhere, the fact is that with DRM, you never truly own the media you thought you bought, and how, where, and whether you can access it can be subject to business and technological considerations beyond your control. It seems to be pretty obvious, too, that ordinary customers simply do not understand the contractual restrictions they are “agreeing” to, and are being misled every day. The simplest way to move past this would be to move past DRM.
Image credit: Flickr user Theen Moy
About John Bergmayer
John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.