Expectations of digital ownership

Billy Barnes is a JD candidate at the University of Toronto.

In a much publicized move, Amazon remotely deleted two books from users’ Kindle e-book readers. It causes one to wonder what rights we actually have in our digital possessions in this increasingly connected world.

As you quickly learn when you start studying IP law, property rights become a lot more complicated when you’re not dealing with physical objects. It’s not too hard to figure out who owns a hardcover book and it’s straightforward to give, lend or sell your copy. You own a book—a bundle of pages covered in ink—and you can do with that as you please. You don’t own the work, the author probably owns that but there is no need to talk of licensing, because when you give away the book your ability to read it goes away too.

Digital content is different because there is no object you can point to and say: “I own that.” You might say you own the file, but a file is a tricky thing to pin down. You can (and should) have multiple copies of files. You move a file to a new location by creating a fresh copy and destroying the old one. You can share it with a friend, retain the ability to use it yourself and, more tellingly, you retain the right to use it while your friend gets nothing. The best you can say is that you have some licence to copy and use the work. But the average consumer is used to thinking that he owns something in the traditional sense and it can be frustrating when reality doesn’t match up with expectations.

You do own the device on which you store and play the file but, as Dugie Standeford points out in a recent post at IP Watch, your control over the device is incomplete. It’s hard to imagine someone from Chapters coming to your house and demanding a book back because they didn’t have the right to sell it. But we’ve seen Amazon do it. Many devices (computers, phones, personal video records, MP3 players, and so on) phone home daily or weekly to check for software updates or download information. The ability the companies have to alter content stored on your devices is limited only by your user agreement—which is to say that it’s probably not limited at all. This, too, differs from traditional expectations.

In this world of content in which our rights are dependent on licences and devices that are controlled remotely by the manufacturers, are new laws needed to protect consumers? It depends on what you mean by new. Certainly governments need to protect reasonable consumer expectations. For example, if I buy a digital audio player that plays MP3s, I reasonably expect that it will continue to do that in the future. It would be unfair if that feature was removed. This, however, is just another application or an extension of existing consumer protection laws. If companies are using these devices to exclude content from other sources, we have competition law. As Standeford’s post says, this is just what regulators have been doing for years.

Policymakers must be careful to not get too excited about safeguarding consumer expectations derived from physical possession and non-networked devices. New technology will always surprise or annoy some people but that is no reason to hold it back in all cases. If you buy a reclining chair, you don’t expect the manufacturer to come to your house and prevent it from reclining. If it turns out that this specific model of chair has been collapsing and injuring owners, however, you might wish that they would and you might also want to be compensated. There is a balance to be struck between the old ways and the new possibilities.

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