Wikimedia Commons In The Arena Think You ‘Own’ What You ‘Buy’ on the Internet? Think again.

Kyle K. Courtney, an attorney and librarian, is copyright adviser for Harvard University working out of the Harvard Library Office for Scholarly Communication.

We are surrounded by “Buy Now” buttons — small clickable icons on the Internet that prompt us to “buy” this song or that, this book or that. But what most of us don’t know is that we are no more buying those products than we are buying library books. And in many cases, their sellers retain the right to snatch them back from us anytime they like.

Not long ago, I participated in a forum sponsored by the Commerce Department and the U.S. Patent and Trademark Office about buying online content. You wouldn’t believe the ideas the big media companies were trying to sell: They want us to give up our most basic freedom — to own what we purchase. It may take government to protect that right, although I hope not.


From the conversation in that forum, which was convened to discuss the relevance and scope of ownership in the digital environment, we were led to believe that if these content industries had their way, none of us would ever own anything again. We could only “license” books, movies, music — anything, really — on their terms and at their discretion. By not “owning” these items, we would therefore be subject to every corporate whim, rising costs and the business failure of these companies for the rest of our lives. I spoke against this then. I am speaking against it now because many of us don’t know how our rights are being siphoned off — and how much worse it could get.

It’s already pretty bad. We all think we purchase MP3s online, download e-books and stream movies. In the intellectual-property circles in which I travel, there has been a great deal of discussion about the realities of ownership of digital goods. With the general public, not so much.

We are attracted — and have become accustomed — to the convenience of rapid purchases and on-demand content. When it comes time to move our online MP3 collection or transfer digital content to another device, then we face a surprising reality: We do not really own our electronic music, books and movies in the same way we do when we purchase physical books, CDs, records or DVDs. This disconnect strikes even the most technically savvy consumer, and invariably we realize the true frustration of our state of non-ownership. “Didn’t I click a ‘Buy’ button when I purchased this?” we ask.

At the heart of this disconnect is the intersection of copyright law and contract law in the digital consumer space, where consumers’ expectations are nullified by a four-page license agreement from an online music vendor (such as iTunes) to buy a 99-cent song that no one reads. When Amazon, iTunes or any digital retailer explicitly says “Buy Now” and the consumer clicks that “buy” button, there is a definite presumption of purchase, and, with that purchase, ownership. That presumption, however, is not reflected in reality.

In fact, clicking a “Buy Now” button means we are entering a contract governing a long-term relationship. Retailers can delete consumer content without warning. Under their setup, we can’t resell music tracks we’ve tired of or give them to a local charity, as you can with used books and records. Sometimes we can’t even transfer it between our own phones, tablets or computers.

Some people are in on the secret. Lawyers and media retailers know that we don’t own the e-content we purchase. And they also know that many consumers will not take the time to read a four-page agreement for a 99-cent song. They treat our digital music and e-books like the software industry treats its products, whether we like it or not. Not one consumer has “owned” a copy of MS Word, PowerPoint and other programs on our computers since the 1990s. We are all renters; we simply lease this software. The big media companies don’t want us to own it, which is why they are trying to sue a small company called ReDigi — which believes we should own our digital material — out of existence.

A lot of us haven’t thought of this because companies haven’t often exercised their right to remove content for licensing or contract violations. But the stories are getting more numerous: In 2009, Amazon remotely deleted copies of two Orwell e-books from customers’ Kindles without notice, based on its licensing terms. In 2012, an IT consultant in Norway had her Kindle e-books wiped and her Amazon account closed for nonspecified violations to Kindle’s terms of service. And, in December, a California court finally heard a class-action lawsuit brought by several Californians against Apple, claiming that Apple deleted their non-iTunes music that owners had downloaded from competing music services from 2007 to 2009. All of these actions were based on the licensing terms of the specific e-media. If these actions continue, the public will be at the mercy of the content industries and those industries’ reliance on consumer ignorance about e-media ownership.

We understand that when we are leasing a car we can’t sell it to another person or give it away. We understand that when we lease an apartment, we don’t really own the apartment, and we can’t sell it to another person. What’s the difference, then, between these transactions and the transactions for e-media?

The difference is the use of “buy” buttons. We consumers are being led to believe that we are buying the e-books, MP3s and movies and therefore enjoy the same rights as if we bought a physical book, CD or DVD. No car lease or apartment rental is listed as “Buy Now,” because you are not buying anything, really. To indicate as much would be deceptive. We don’t make the same assumptions in the digital world because we don’t know we have to.

Now, enter the law: Is this sort of practice of “buy” buttons deceptive? Do these buttons misrepresent the truth of the transaction?

What would be the results if your apartment rental or car lease transaction were facilitated with a “buy” button? Well, it might be listed as a fraudulent or deceptive action. Under consumer protection laws enforced by the Federal Trade Commission, these types of actions are illegal, and the companies would be subject to FTC enforcement. But when it comes to e-media, there’s been little enforcement so far. As far back as 2003, the Benefit Authors Without Limiting Advancement or Net Consumer Expectations (BALANCE) Act, designed to protect the rights of digital consumers, was introduced in Congress. That same year, the Senate heard a companion bill, proposing a Digital Consumer Right to Know Act, which would have required the FTC to issue rules regarding the disclosure of technological measures that restrict consumer flexibility to use and manipulate digital information and entertainment content. Neither bill went anywhere. And what was speculation in 2003 has become a technical reality — our secondary markets are being destroyed by contracts and licensing agreements that are not truthfully disclosed to the consumer. Laws like these are desperately needed to curtail the misinformation.

Or the media companies could tell us the accurate, informative truth, the foundation of a free market. E-media companies could simply use the words “lease” or “rent” instead of “buy.” Or they could let us really buy what we purchase.

This truth needs to be spread. The outrage needs to be shared. We shouldn’t have to lease all digital media in our lives, nor should we be tricked into fraudulent “buying,” depriving us of the choice whether to buy or to lease. Whether or not FTC regulatory enforcement is necessary, the information about these purchases and the realities of these e-media contracts must be shared with consumers so we can make up our own minds and do what we want with what we “buy.”