You Don’t Own the Music, Movies or Ebooks You ‘Buy’ on Amazon or iTunes

From Two Cents:

When you purchase music, movies or books from Amazon or Apple’s iTunes store, you might be under the impression that that material is yours to enjoy forever; that’s how CDs and paper books work, after all. Why rent You’ve Got Mail for $3.99 every few months when you can “own” it and watch it whenever, forever, for $9.99?

But you’d be mistaken. Anything digital is temporary, even if you clicked “purchase” rather than “rent.” One unfortunate side effect of that you won’t experience with a physical book or record: Your purchases may just disappear if licensing agreements change.

. . . .

As outlined in the Twitter thread, Apple states the content provider of the movies in question removed them from the store. And that removed them from the user’s library, even though he had paid money to buy them. It’s easy to see why that’s frustrating (especially since Apple wasn’t willing to cough up a refund for the purchases he no longer has).

“This wouldn’t happen in the physical world. No one comes to your door and demands that you give back a book,” Aaron Perzanowski, a Case Western Reserve University law professor, who studied these digital purchases, told the LA Times in 2016. “But in the digital world, they can just go into your Kindle and take it.”

. . . .

For example, Amazon notes in the fine print that “Kindle Content is licensed, not sold, to you by the Content Provider. The Content Provider may include additional terms for use within its Kindle Content.” You also can’t sell or redistribute your ebooks, as you might with a physical copy. Apple’s fine printstates that the licensor “reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.”

. . . .

The best option? If you can, buy a physical copy of a movie or TV show that comes with a digital download. At least you’ll have a backup in case your digital copy disappears—assuming you still have a player to watch it on.

Link to the rest at Two Cents

When PG read the OP, one of the first things to pop into his mind was, “born yesterday”.

The author of the OP apparently discovered licensing of intellectual property shortly before writing the article and assumed at least a portion of the Lifehacker audience didn’t know much about the topic either.

“Born Yesterday” was the name of a Broadway play with two revivals plus three different movies.

Here’s a plot summary of the original Broadway play, Born Yesterday, which premiered in 1946, from Wikipedia:

An uncouth, corrupt rich junk dealer, Harry Brock, brings his showgirl mistress Billie Dawn with him to Washington, D.C. When Billie’s ignorance becomes a liability to Brock’s business dealings, he hires a journalist, Paul Verrall, to educate his girlfriend. In the process of learning, Billie Dawn realizes how corrupt Harry is and begins interfering with his plans to bribe a Congressman into passing legislation that would allow Brock’s business to make more money.

As a general proposition, the creator of intellectual property is its owner. Everybody else who wants to observe, read, listen to, etc., etc., that intellectual property is not the owner of the IP, but only has limited rights created by statute or license to do some things with their copy of the IP.

The owner of a physical book can’t make copies of the book and sell them to others because the book’s owner doesn’t own the IP depicted in the book. He/she is only the owner of the paper, ink and binding of that particular copy of the book. The copyright law (statutory and otherwise) which creates and defines the IP in the first place permits the book’s owner to do certain things with the physical book – read it, lend that copy to someone else, sell that copy to someone else, donate it to a library, deface the book, use excerpts or quotes from the book for various purposes, etc., etc.

The same basic rules, adapted to different media by which IP can be duplicated, transmitted, etc., govern copies of the IP in digital form. Just as making a copy of a book to give or sell to someone else is a violation of the creator’s IP rights, generally speaking, making a copy of a CD, a digital file, a photograph, or other protected medium incorporating such IP to give or sell to someone else is, absent permission from the creator or permission granted via copyright law, a violation of the creator’s IP rights.

Enough of this type of blathering.

The OP caused PG to wonder whether an author self-publishing with Amazon via KDP could make digital copies of his/her ebooks disappear from Kindles everywhere by unpublishing the ebook.

The short answer is probably not.

Here are some excerpts from the current Kindle Direct Publishing Terms and Conditions that describe what rights an author grants to Amazon:

Paragraph 3 Term and Termination (excerpt with PG highlights)

Following termination or suspension, we may fulfill any customer orders for your Books pending as of the date of termination or suspension, and we may continue to maintain digital copies of your Digital Books in order to provide continuing access to or re-downloads of your Digital Books, as well as digital copies of your Books to support customers who have purchased a Book prior to termination or suspension. . . . All rights to Digital Books acquired by customers will survive termination.

Paragraph 5.1.4 Book Withdrawal (excerpt with PG highlights)

All withdrawals of Books will apply prospectively only and not with respect to any customers who purchased the Books prior to the date of removal.

Paragraph 5.5 Grant of Rights (excerpt with PG highlights)

You grant to each Amazon party, throughout the term of this Agreement, a nonexclusive, irrevocable, right and license to print (on-demand and in anticipation of customer demand) and distribute Books, directly and through third-party distributors, in all formats you choose to make available through KDP by all distribution means available. This right includes, without limitation, the right to: (a) reproduce, index and store Books on one or more computer facilities, and reformat, convert and encode Books; (b) display, market, transmit, distribute, sell, license and otherwise make available all or any portion of Books through Amazon Properties (as defined below), for customers and prospective customers to download, access, copy and paste, print, annotate and/or view online and offline, including on portable devices; (c) permit customers to “store” Digital Books that they have purchased from us on servers (“Virtual Storage”) and to access and re-download such Digital Books from Virtual Storage from time to time both during and after the term of this Agreement

It appears to PG that Apple’s agreement with the owners of the copyrights to some iTunes movies did not include anything like the language in the KDP T&C’s and that the movie owners could force Apple to terminate rights of its customers who had paid for licenses to those movies.

It appears to PG that an author or publisher operating under the KDP T&C’s or something similar can’t force Amazon to terminate a customer’s rights to access an ebook they bought through Amazon. Amazon can decide to do so, but an author can’t make Amazon pull a digital move like iTunes did.

As usual, PG is a lawyer, but nothing PG posts on TPV is legal advice. If you would like to obtain legal advice, you need to hire an attorney to give you that advice, not read what a lawyer might post on a blog.

PG invites comments that agree or disagree with his half-baked (or fully-baked) blatherings on this topic.

16 thoughts on “You Don’t Own the Music, Movies or Ebooks You ‘Buy’ on Amazon or iTunes”

  1. You can’t sell copies of Harry Potter but you can write your own story about a child wizard that goes to a magic school.

    Which is exactly what Jane Yolen did. Eight years before Harry Potter was a thing. She did joke about being willing to cash a check if Rowling wrote her one, but that was it.

    • If Rowling were to pay her, Jane Yolen would have to send the check to the estate of Ursula K. Le Guin for ripping off “A Wizard of Earthsea,” which is also about a prickly boy who goes to wizard school.

      Kids going to school to learn magic is hardly an innovative concept. There’s room for many more. But I have to say that Wikipedia’s synopsis/blurb for Yolen’s story does not entice me to read her version. They make it sound boring; Wikipedia did her no favors there.

  2. I’d be less worried about stuff disappearing because of licensing issues and more (if I was inclined to worry) about hardware and software changing and there coming a day when there’s nothing on the market to open a “mobi” or “epub” file.

    • This is why file formats need to be open standards that anyone can implement.

      Open Source software can then be written to understand the format and can be used even on very old data.

  3. Same thing bit Amazon in the butt when they had to pull paid for copies of 1984 and Animal House.

    I still want to see Disney and the like having to say “Lease it today!” instead of “Own it today!” and watch their sales – I mean leashes – drop.

  4. PG, outside of the book world the majority of consumers haven’t a clue that they don’t own their ebooks outright. A close relative of mine–who shall remain nameless–converts every ebook she buys to side-load it onto her computer.

    When I pointed out the licensing agreement she replies, “If I buy something, it’s mine!” Nothing I say will dissuade her. She also complains bitterly about not being able to loan her books to like-minded friends.

    If Amazon, or some other retailer, don’t say ‘license this book’ instead of ‘buy this book’ at the point of sale, then most people won’t really know about it. The fact that it is buried in the fine print says that the company doesn’t really want to draw attention to it. Outside of the legal profession most consumers just click through the TOS. ☺

    Closer to home, I have had ebooks suddenly sprout a new cover or other alterations in the text when an author decided to make edits. Some of these changes are unobtrusive, some are not. All are unwelcome. And there’s no telling what may happen to the servers these texts are being stored on, or what changes may come to Amazon when Jeff Bezos is gone.

    • Your cousin might be right–under fair use–so long as it is strictly for personal (backup or transcoding) use. No distribution to others.

      Nobody has bothered to litigate it and probably won’t. Big can of worms not worth the fight, especially considering how a variety of digital content vendors have gone away leaving the customers with nothing to show for their money. And with the obscuring of the rules…

      But that is on ebook side.
      Music and video are different. Especially music which has special legal protections other media don’t.

    • And there’s no telling what may happen to the servers these texts are being stored on, or what changes may come to Amazon when Jeff Bezos is gone.

      The market has provided everything we need. Don’t buy eBooks. Limit purchases to paper. Bezos can’t change a paper cover on our shelf. Once we have that shelf of paper, it doesn’t matter if Bezos is dead or alive.

      God Bless the free market, and may Bezos live long and prosper.

  5. I haven’t looked at the Apple agreements. A quick look at the Amazon terms you quoted provides a great deal of comfort, but they could I think be improved upon. Para 3 excerpt looks good. Sub-Para 5.1.4 excerpt uses the phrase “customers who purchased the Books prior to the date of removal”, the operative part of the phrase being “purchased the books”. Unless this is affected by definitions or other provisions so as to cover the grant of a license it is potentially problematic. Sub-Para 5.5 excerpt uses the phrase “Digital Books that they have purchased”.

    Unless resolved elsewhere in the terms I must wonder whether “purchasing” a “book” or “digital book” is apt to cover the grant of a license. Particularly where the grant of a license is only one of the ways Amazon is authorised to distribute a book. There are arguments both ways, and I’m not motivated to look much further into it. Based on what you have posted here I agree wholeheartedly with your answer to the question you pose, “probably not”. But there certainly seems to be plenty of space for a good litigation lawyer to argue the point should the circumstances and a sufficiently motivated (and solvent) client materialise.

  6. I just came across this.

    I usually watch for this sort of thing but must have managed to miss it. I would not have thought that Amazon would allow this to happen following the 1984 fiasco. Some years have now passed and it appears they probably don’t need do this with KDP books. We are not of course privy to what they can do with non-KDP books.

    I do subscribe to Prime but I have not bought movies there. If this can still happen then it is sufficient to make sure I don’t.

    • From Amazon Prime Video terms:

      i. Availability of Purchased Digital Content. Purchased Digital Content will generally continue to be available to you for download or streaming from the Service, as applicable, but may become unavailable due to potential content provider licensing restrictions or for other reasons, and Amazon will not be liable to you if Purchased Digital Content becomes unavailable for further download or or streaming from the Service.

  7. About the OP:
    The tweet referenced isn’t about what they think it is:

    In short, what happened was the person bought the three “lost” movies from iTunes Australia, moved to Canada, and tried to download them from iTunes Canada. A different store.

    The Canadian store customer service rep thought the purchase was a Canadian purchase and couldn’t figure out how the transaction had vanished from the records.

    It’s really a matter of regional rights, miscommunication, and the limits of Customer Service scripts.

    (Apparently, all he had to do was change his region code back to Australia to redownload the aussie version of the movies.)

  8. It does happen in the Amazon store! Yeppers. The thing is, most people wouldn’t notice it because the icon simply disappears and if it’s been a while, who’s going to look at which book out of 3500 has dissappeared from the servers, or even know that it did disappear.

    When I was doing the scammer research a couple of years ago (time flies!) I had to buy some of of the books to do my research, and also to capture the data to send to ECR at Amazon. When all of those got pulled, one was still loaded on the kindle in the local drive. Next time I turned it on, the cover was replaced with a “content no longer available” and when I went to the cloud, poof…gone.

    After that happened, out of curiosity, I went and did a little digging (because hey, research!) and found that a fairly good number of early Kindle books listed on the purchase history were no longer available or had disappeared from the digital listings entirely. Why? Who knows, but I’m guessing those were all people who got accounts pulled at some point.

    The only way to ensure that you keep an Amazon book, without updates, (though I prefer updates because it’s a better reading experience usually), is to locally download to a Kindle and then once it’s full, turn off the wifi and never turn it on again. That’s pretty much it. Legally, that is, without stripping and side loading.

    • Uh, there is an easier fix.

      If you own a Kindle reader you can download the ebooks for it to a PC and archive the files or sideload the reader.
      If you are really paranoid you can remove the DRM and store that. DRM-free, they can be converted to any format, epub, KEPUB, iBook, RTF, HTML, even MSreader.

      You used to be able to do the same thing with NOOKS but B&N did away with the option a couple years back. Folks are still complaining about the loss. 🙂

      • The process starts after you sign on to your account and go to MANAGE YOUR CONTENT AND DEVICES. You filter out the books and hit the ellipsis button to the left of the book. You get a popup box of options; the third option is DOWNLOAD & TRANSFER VIA USB.

        After that you have an archival copy that (if DRM’ed) will only open on your default device. No updates will affect it.

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