The End of Ownership.

Aaron Perzanowski and Jason Schultz’s book The End of Ownership gives a surprisingly strong argument that our rights as consumers are rapidly being eroded by changes both in the law and in technology, so that we no longer own many things we might believe we do. In the era of digital goods from books and music and movies to software, we are still paying for the same content, but when once we purchased, now we merely “license” – even though most consumers probably aren’t even aware of the change.

For most of the history of commerce, if you bought a good, you got the good, and that was essentially that. If you bought a book, you owned that copy of the book. You were free to do with that copy as you wished, so long as you didn’t make unauthorized copies of it. You could lend it to someone, or you could sell it outright. The owner of the copyright on that book could not stop you from doing any of those things, nor could s/he repossess the book from you for any reason. The same is true of a patented good: if you buy a widget, you can resell the widget, even if the widget itself is covered by a patent. This is known as the “exhaustion principle” or the “first sale doctrine.” (I’m sticking with U.S. domestic laws on intellectual property here; the rules laws on international exhaustion are often less clear.) I own a special green-vinyl edition of A Tribe Called Quest’s single “I Left My Wallet in El Segundo;” I still own that record, but I could lend, sell, or donate it as I please, without the group’s permission, and without affecting ATCQ’s copyright to the underlying work.

In the digital realm, however, this principle has been superseded by licensing agreements – those things you’re given when you download a digital good or install a software update, which you don’t read but you click “Agree” anyway because let’s get on with this already. Those licenses say you don’t own the goods you’re paying for, even though you probably clicked on something that said the word “buy,” which strongly implies a purchase, not a license. Those agreements, known as end-user licensing agreements or EULAs, curtail the consumer’s rights in ways that the consumer may not understand or expect, resulting in an imbalance of information between buyer and seller where the former probably believes he’s acquiring more rights than he actually is, including the rights to make copies of the good for his personal use, and the right to retain the product in perpetuity.

Law professors Perzanowski and Schultz argue that this is a three-pronged problem. One, consumers believe they’re getting something they’re not. Two, companies are unilaterally abrogating rights afforded to consumers by federal and state laws. And three, Congress and federal courts have totally dropped the ball on the entire issue, passing laws that favor content creators at the expense of both consumers and the public good, or issuing contradictory rulings that reduce our rights in ways that consumers don’t understand and that help take away any semblance of ”ownership.”

The authors give copious examples, some of which were truly non-obvious to me. As the so-called “Internet of Things” expands to include more devices that don’t obviously need an internet connection but have one anyway – like the microwave in that Conway twit’s kitchen – then our rights of ownership are also affected. You might own the physical parts of the refrigerator, but you’re only licensing the software on it, so you can’t sell the fridge because you don’t own the whole thing. You may not be able to sell your smartphone for the same reason – the manufacturers can argue that you are only licensing the software on it, which means you own the device but not the entire unit to be able to sell it.

Why is this OK? The authors give the example of a hat that is only licensed to the purchaser, not sold, so the purchaser can’t transfer ownership of the hat via any method to anyone else. Would you buy that hat? Would you even understand the legalese that accompanies it? In another example, the authors pose the hypothetical of “single-use” car tires, which your tire license would prohibit you from repairing once they were damaged or worn out. Consumers have a specific expectation when they purchase something, but when you ‘purchase’ a digital good, those expectations exceed the reality, yet for some reason we accept this loss of purchaser rights in the digital realm without any real pushback.

What about libraries in the digital world? Some publishers, including HarperCollins (mine), have created programs for libraries to buy digital books, but with heavy restrictions on how libraries may lend them out; HarperCollins only allows one ‘copy’ of the book to be on loan at any time, and after a fixed number of borrowings (I think it’s 24), the library’s license to the book must be renewed. The publishers argue that such restrictions are necessary to avoid cannibalizing the market for book sales, and that the restrictions mirror the physical decay of books that are repeatedly handled and borrowed. I can understand the former, but the latter doesn’t hold water for me, since I recently borrowed a book, Martin Flavin’s Pulitzer-winning novel Journey in the Dark, from my local library, and the edition – worn, but intact – dated back to the late 1940s.

The authors do an excellent job of translating thorny legal questions into accessible language, and offer some very specific solutions that Congress could enact to solve many of these problems – and if Congress had ever shown an iota of interest in protecting consumer interests over those of copyright holders, well, I might have some hope. The legislative history of copyright law in the U.S. is essentially all anti-consumer, with copyright terms becoming longer and such laws on digital goods reducing consumer rights even further. The mere concept of copyright was to ensure content creators were sufficiently rewarded so that they’d continue to create – if you can’t make money off your creations, you’ll have to do something else to pay the bills. The concept was not intended to provide such legal protections for two human lifetimes, but that’s about where it stands now, because there are some very big companies out there who depend on long-term copyright protections, and they can spend to ensure that works don’t fall into the public domain when they were originally scheduled to do so. The parade of degradations of consumer rights seem unlikely to cease any time soon, and the end of that path could be the end of ownership.

Next up: Upton Sinclair’s novel Dragon’s Teeth, winner of the 1943 Pulitzer Prize for Fiction.

Comments

  1. Very interesting… this makes me glad I still prefer music on hard copy… digital music could always be withdrawn or made unavailable.

  2. This was exactly the biggest problem with most of the trade agreements, at least as I understand them. The net loss or gain to the economy was relatively small in one direction or another, but the fact that these treaties enshrined the usurious rights-holder protections at a level that was out of reach of the legislature is what made them toxic.

    The Patriot Act was bad, but the DMCA was in many ways more insidious. This book’s going on my list.

  3. Ironically, this is why I stopped buying music…..if I don’t actually own it, I’m not paying for it. I’ll just stream it.

    As for books, this drives me crazy. There isn’t even a way to loan the digital books to my wife, legally. And yet, they are charging me the same price as if I’d bought the hard copy. It really, really, bothers me. And, there is no good way around this at all right now.

    It also bothers me that book companies charge full price for digital copies of 40 year old books. I’d think that by now, a price that would encourage me to buy them would be a better idea. I’d like to read some classic fantasy books, but I’m not paying $6.99-$8.99 for a 50 year old book. There are plenty of other things to do with my time.

  4. This is why I rarely buy e-books.

  5. I assume to some extent (though obviously you can correct me if I’m wrong) that the publisher’s and the author’s goals are not entirely aligned.

    I assume authors’ primary goal is to be read.
    I assume the publishers’ primary goal is to make money.

    Obviously, the author ALSO wants to make money and the publisher ALSO wants the book to be read (primarily because that is more likely to make them money), but where you might be inclined to say, “If you aren’t going to buy my book, I’d still like you to get it from the library and read it,” the publisher might think, “Why won’t all these libraries just go away?

    And the publisher probably has final say on all these decisions.

    But as an author and a reader, I’d be curious to hear your perspective, KLaw.

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