Home » Copyright/Intellectual Property » What Does Ownership Mean in the Digital Age?

What Does Ownership Mean in the Digital Age?

22 December 2016

From Copyright and Technology:

When you hit a “buy” button on Amazon, iTunes, or another digital content retail service, do you actually own what you’ve paid money for?  If you look at most retailers’ terms of service, the answer is no: you are licensing it on some terms that the retailer sets, which usually don’t amount to ownership.  In their important new book, The End of Ownership: Personal Property in the Digital Economy, legal scholars Aaron Perzanowski and Jason Schultz assert that this is a problem, and that the law is the best way to solve it.

. . . .

[The book] raises this fundamental issue: as more and more objects in our daily lives incorporate software, and that software is conveyed to people under contract (license) and not ownership, we don’t really own those objects anymore.  Instead, we’re subject to limitations on our use and handling of those objects that are imposed by both law and technology.  DRM is the shorthand they use for that technology, even though some of it doesn’t fit the classic definition of DRM.

The authors take it as axiomatic that ownership is an important concept that needs to be preserved in the digital age — at least as a choice we can make when we obtain goods (physical or digital).  The book starts out with an explanation of the three types of property that the law recognizes: real property (like real estate), personal property, and intellectual property.  We have a longstanding intuitive grasp of these types of property; Perzanowski and Schultz explain how laws embody and facilitate that understanding.  They explain differences among these types of properties in terms of the balance of rights between owners and non-owners and, more importantly, what happens when you alienate (sell, give away, lend, or rent) your property.

The legal construct of exhaustion covers this.

. . . .

Perzanowski and Schultz say that it’s important to establish an ownership right in law, which should allow users to use and alienate digital property in any way they choose.  That includes interoperability across “walled gardens” like Amazon’s Kindle e-book or iTunes’s movie ecosystems as well as the right to resell files.

. . . .

Instead, their proposed solution is to create a law for digital first sale along the lines of current fair use law.  The fair use law (Section 107) contains four factors that a court should consider when deciding whether a copy that a defendant in a copyright litigation made is lawful. One of those factors is the effect that the use has on the market for the work being copied.  Similarly, Perzanowski and Schultz’s digital first sale law contains several test factors, one of which is whether the alienation affects the market for the work.  They point out that copyright law already sets exhaustion boundaries for music and software by preventing rental, lease, or lending.

Link to the rest at Copyright and Technology and thanks to Ruth for the tip.

Copyright/Intellectual Property

11 Comments to “What Does Ownership Mean in the Digital Age?”

  1. This post brings a question to mind that I would like to ask of TPV subscribers. Do indie authors here make a practice of registering their work with the Library of Congress Copyright Office when they release new books? I worked in IP litigation (not as an attorney) for thirty years. One of the technical boo boos that emerged in litigation was *timely* copyright registration. There were occasions when a traditional publisher failed to register an author’s work in a timely fashion (not later than ninety days after publication date). Timely registration gives the content creator $200,000.00 in statutorily guaranteed damages upon a verdict of copyright infringement plus attorney’s fees.

    Plaintiffs cannot file for copyright infringement until after the work at issue is registered. How many authors here register their work?

    “if you have not yet done so, it is advisable that a registration be made as soon as possible in order to secure the opportunity for valuable remedies and litigation advantages available for timely registration under the Copyright Act. If a work is registered prior to infringement or within three months of publication, statutory damages will be available as an option for monetary relief, and the recovery for attorney’s fees may be available.”
    https://www.copyright.gov/help/faq/faq-infringement.html

  2. They point out that copyright law already sets exhaustion boundaries for music and software by preventing rental, lease, or lending.

    That’s not ownership. It excludes typical control that comes with ownership.

    I own my lawn mower. I can rent, lease, or lend it.

  3. Article “When you hit a ‘buy’ button on Amazon, iTunes, or another digital content retail service, do you actually own what you’ve paid money for?”

    When you “buy” a book on Amazon do you actually own what you’ve paid money for? No. You paid for the information in the book, all you own is paper with ink on it.

    Article “The authors take it as axiomatic that ownership is an important concept that needs to be preserved in the digital age — at least as a choice we can make when we obtain goods (physical or digital).”

    Digital or physical? Does the author believe that the atoms you receive when you buy a paper book are more ‘physical’ than the electrons you receive when you download a song? If so, he has no clue what ‘physical’ means. Lawyers and judges, authors and readers who have no glimmering of what information actually is and sloppily misuse words have little hope of really understanding what copyright and IP are.

    • Ownership includes the ability to exploit the property for profit. Without that, it’s hard to make a case for ownership.

      • Umm…
        Not quite.
        Profit is never guaranteed.

        More generally: You own things you can use for your own benefit. Marketability isn’t always a guaranteed feature of ownership.

        You can own options, IP, and personal use licenses without a chance of profiting from them.

        • I agree profit is not guaranteed. But ownership allows one to seek profit from exploiting the property. Success or failure doesn’t change the ownership status.

          And a license? If you can’t sell it, you don’t own it.

          Trying to push new technology into an old model doesn’t work.

      • Have to differ. Ownership more or less imparts control, not profitability. Ownership of different types of things imparts different kinds of control. For instance I own a piece of land but zoning and other regulations severely limit the ways in which I can sell it and have made profit all but impossible. On the other hand, I have an ancient Studebaker Hawk that I could sell at enormous profit, if I could bring myself to part with it. But I own both.

        It’s partly semantics, but I am comfortable saying that I own certain rights to the electronic books on my Kindle. The rights are more circumscribed than the rights I have in the paper books on my shelves, but the rights that I value most highly: the right to read my books whenever I feel like it and digest their contents are the same for both digital and paper. I can profit from the content of both by using the effects of my reading in profit-making ventures.

        All this being said, I would like a few more rights to digital books. Digital books suffer from technological limitations that make some aspects of traditional ownership, like reselling a digital book, problematic. There are technologies that could change this. Block-chain is an example. It could be used to establish a chain of ownership of digital material that does not exist today. Whether block-chain ownership of digital books is practical is a good question, for which I have no answer.

        • First of all, thanks to PG for the attributed and linked reblog of my piece here.

          Perzanowski and Schultz talk about potential blockchain solutions for establishing ownership in their book. In my review of it I explain how those proposed solutions are not practical. I discuss this in more detail here: https://copyrightandtechnology.com/2016/11/29/of-hammers-nails-and-blockchains/.

          My discussion focuses more on music than on e-books. The relevant difference is that purchased music files (permanent downloads) do not have DRM, while the majority of e-books do. Any blockchain solution for proving ownership is going to have to use some form of DRM in order to minimize abuse. That makes it a nonstarter for music.

          But beyond that, blockchains for proof of ownership will only succeed in the market if consumers care enough to want it. My view is that they don’t. The only digital content market where people care about this is the digital art market, where provenance and ownership are critical. That market is in its very nascent stages now.

  4. I watched copy protection, “shrinkwrap agreements”, the DMCA, and DRM all unfold in real time.

    My stance then, and now: I don’t buy “content” that is just a temporary license, or is only accessible at the whim of the vendor, or is tied to some specific hardware product.

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