Digital Lifestyle: Do you own your content?

PUBLISHED : Friday, 19 October, 2012, 12:00am
UPDATED : Friday, 19 October, 2012, 5:03pm

Can I sell a downloaded song just as I can a CD? The thorny issue of digital ownership was brought to light recently when a story circulated online suggesting that actor Bruce Willis was going to sue Apple because he couldn't legally bequeath his iTunes music collection to his family. The story was without foundation, but the questions it brought up refuse to go away: in the digital era, what do we own, what can we sell, and does it matter?

Most of us idly tick the box before reading the terms and conditions every time we join an online music or movie download service, but we do so at our peril because the hoards of MP3s, downloaded movies and even e-books we've "purchased" don't technically belong to us at all.

The "download" is an intangible good, subject to very different laws.

"Many will be surprised to know that the ownership of digital content is a personal right and may not be passed on to their estate when they pass away," says Tom Scourfield, a partner at the law firm CMS Cameron Mckenna in London. "This is in stark contrast to physical goods, where ownership rights are generally exhausted on first sale, allowing the purchaser the freedom to use or resell that item how they wish."

The almost identical prices for a CD and a download hides the fact that the latter is merely a licence; download an MP3 and you haven't purchased anything tangible.

"It's not like owning a physical CD," says Vanessa Barrett, a commercial lawyer at the London law firm Charles Russell. "All you have is a licence to use them, so whether or not you can pass them to an estate when you die depends on that licence."

Such licences tend to have a phrase tucked in the back saying "this licence is non-transferable".

"The licence is literally someone saying: 'I give you permission to use this file, but you can't give it to someone else'," says Barrett, though in practice things aren't quite so esoteric. "I can hand my iPod to someone or leave my computer to my estate. It's just not in anyone's interests to enforce against individuals leaving things to their family."

That sorts out the inheritance issue, but what about income?

People are starting to express a wish to resell digital files and software, and it's causing problems. Before the digital age, the copyright owner couldn't police what you did; books and CDs could be lent around and sold. That's no longer the situation; a company in the US offering to sell "second-hand" MP3 downloads has been sued by one of the major record labels, while in Europe there was a similar case with the resale of business software.

For everyone except the copyright holder attempting to sell access to an item multiple times, it's a no-brainer. "The concept of second-hand goods is much more attractive in the digital world, since a second-hand copy is as pristine and desirable as the original sale," says Scourfield. "Why wouldn't we want the same thing for less?"

If the internet user is slowly becoming aware of the lack of ownership of digital files after a decade or more, the rights holders of books, music and movies have been wary of the internet since its inception. It's precisely their efforts to protect copyright in the perceived hostile environment of the internet that eats into what consumers feel they have always had a right to do. "The little tricks of the trade to inhibit consumers using content the way their lifestyle operates cause people to go to illegal means," says Barrett, referring to films that become unwatchable exactly 48 hours after being rented via a download.

Suddenly being locked out of a movie, not being allowed to transfer a file onto a specific device, buy it in a certain format, or being prevented from finding an electronic version of something online are reasons why internet piracy is still rampant. Despite 3.6 billion song downloads being purchased last year, an increase of 17 per cent from 2010, the International Federation of the Phonographic Industry reports that 28 per cent of internet users access "unauthorised" services.

Rather than being a threat to the likes of Apple, Amazon and Sony, much of that piracy can be attributed to content owners' reluctance or inability to make everything available everywhere, and in every format. "Illegal downloading is sometimes an attempt to avoid payment, but it could also suggest that there is a real market demand that is not being met," says Doug Lowther of digital content security company Irdeto.

And they don't want to spend the same amount of money that a CD, DVD or book costs to "buy" something they can't sell or swap. So, have we reached an impasse?

"The question is whether end users should have the same rights for free movement and exhaustion of rights in enjoyment of services as they do with goods," says Scourfield. "As always, the law struggles to keep up with the real world."