Dissonant Notes

Sunday, June 12, 2011

Intellectual Property in the Digital Age (Or Why Downloading Means You Don't Own a Thing)

In 2009, as reported in the New York Times  and a thousand angry blogs, Amazon went into customers' Kindle’s and deleted copies of 1984. It turns out the edition of 1984 sold to the Kindle owners had copyright issues and should never have been on sale to begin with. Obvious points were raised like would a bookstore be able to break into your home to retrieve a book from your shelf? No, but if you had purchased ‘stolen’ goods you would legally have to return them. True, but only after the actual owner had gone through the correct legal channels. In this instance the offending work was removed without permission, and an explanation arrived only after the fact. “I never imagined that Amazon actually had the right, the authority or even the ability to delete something that I had already purchased” said Charles Slater, one of the customers whose copy of 1984 had disappeared. After the storm in a teacup passed, Amazon promised never to do it again, but this did not change the fact that they could if they so desired. What are the ramifications for our future when such actions are legal?

The first question to ask here is: why was it legal? Clearly the idea of ownership has been subverted as has the idea of privacy. The exchange of money for goods is the backbone of capitalism but when you do not own a physical copy of a particular item you do not, in fact, own anything. You are in possession of pure intellectual property (IP for short) and that IP does not belong to you. It belongs to the license holder and they can legally take it back whenever they wish. Electronic devices such as Kindle, Nook or iPhone are all subject to invasions like the one described above, although I use the word ‘invasions’ in a moral, not a legal sense as Amazon did nothing illegal. If you have a magazine subscription on your Kindle and you cancel that subscription, you lose all those back issues you paid for. So what did you pay for? You paid for what amounts to a finite loan agreement that allows you to access IP on your device as long as the owner continues to agree to the loan. Are there any benefits? Well, libraries updating to digital won’t ever have to worry about dog-eared books again. Unless of course corporations were to design digital technology that automatically deleted itself.

The bad news is the above scenario has already happened. Publishing companies are making libraries re-purchase books for no good reason other than the fact that they can make them do it. Seeing as the libraries don’t technically own the books, the process is completely legal. In order to protect their IP, corporations are going to great lengths to restrict the flow of goods. Reselling your video game or software looks set to become a thing of the past because, no prizes for guessing, you don’t actually own either the software or the video game. You are merely a licensee. Corporations have attempted to keep control of digital media by using digital rights management (or DRM, a catchall term for the technology used to limit what the consumer can do with digital data) with the result being countless PR disasters like the one involving 1984. Even Bill Gates admitted that DRM has “huge problems” and “causes too much pain for legitimate buyers”. Digital technology is so ridiculously user-friendly that it requires a minimum amount of knowledge to copy and distribute it on the internet. For this reason DRM intentionally made it harder but, in doing so, it caused headaches for all consumers. CDs stopped using DRM in 2007, and in 2009 iTunes did the same with regards to music (videos continued using DRM). Easing up on DRM usage, however, has not changed anything in terms of music ownership. When it comes to digital downloads the consumer does not own a thing, and as a result they have limited rights in regards to what can be done with those downloads.

The ‘problem’ with digital files is that they are able to be copied very easily and with no loss of sound quality. This left the music industry with one option which was to criminalise millions of people. Multi-billionaire Lucian Grainge, head of Universal and arguably the most powerful man in the music industry right now, has said that illegal downloading is one of the things that keeps him awake at night. "The fact of the matter is it is illegal. Piracy is illegal” says Grainge, who convinced the UK’s biggest internet service providers to send out warning letters to users who were engaged in illegal file sharing. Even if the industry is moving away from DRM, it is still intent on instilling fear into the illegal downloader. Being a business, however, means that corporations have to worry about bad PR and, every time they prosecute a file sharer, they look like Goliath crushing an ant for a few extra dollars. DRM gets bad press, prosecuting customers gets bad press, but the fact that corporations retain ownership of digital downloads is relatively uninteresting because it doesn’t actually cause problems for consumers on a day-to-day basis. Until a company like Amazon flexes its muscles and removes a file from a Kindle, the consumer remains blissfully unaware of how little control they have of media that was thought to be their own.

Has there been any kind of fight back from the customer? The main area of resistance has been over devices that play digital media rather than the media itself. For instance, iPhone users won a legal victory when a US court ruled that it was within the law for them to ‘jailbreak’, a term which means hacking into the iPhone and downloading applications not authorized by Apple. Apple’s response was to implement a new application that allows them to monitor iPhone users’ activities and disable their iPhone if they feel the users’ actions are ‘unauthorised’.  It seems as if corporations want to limit not only what you do with your files but also what you do with your devices.

What does the future hold for digital downloading in general? Corporations like Amazon and Apple seem to be taking the position of retaining ownership of digital media so that they may take action if necessary, such as deleting a file or prosecuting a customer, but avoiding doing so to elude bad PR. Legal action will hang over users’ heads in the hopes that it will offset most illegal activity, while the industry in general struggles to come up with a way of having complete control along with the image of a customer driven business model. With companies such as Netflix and LOVEFiLM reducing the need for ownership of movies, we seem to be entering a new era, one in which the consumer pays much but owns next to nothing. Do people care? If the emotional relationship we have with our entertainment is low, this seems to be the perfect scenario. To those with a greater emotional attachment, it’s hard not to envision an ominous future that relies on the benevolence of corporations in regards to reading, viewing, listening to and sharing what are seen as important works of art. Without the ability to control and share, we run the risk of losing something of value forever. Perhaps we should be keeping hold of our books, CDs and DVDs, for both the ownership value they provide and the feeling that they cannot be legally whisked away at a moment’s notice. Until we have the same ownership rights in regards to digital media, the relationship between corporations and its customers will remain an uneasy one.

(This article originally appeared in edited form on the Substance website)


  1. Great article, Wallace.

    Of course, backing up all your digital media to external storage devices, particularly any you can keep off-site or simply disconnected, is an easy work-around for the problem's first order - retaining "physical" copies of digital files, or keeping them out of reach of the corporate providers of the files. It certainly does not address the more philosophical issues you discuss in the article, but it does allow the user to keep the files while the ambiguity of ownership is plucked at.

    I have over 150 GB of music alone, backed up on two additional hard drive. Thanks for the essay. It was a good read.

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  3. Fuck, you beat me to it you sly devil

  4. The good news is, we get stuff like www.gog.com which will just sell you games with no bullshit attached. Log in to your account, download as many times as you want. They seem to be doing ok. Likewise, Rifftrax.com, for the stuff that doesn't require syncing with a modern movie, will let you download the stuff you buy in a range of formats (proprietary or open)

    Of course, most of these products are far from fresh. Doesn't mean they're not enjoyable. The hope is that they can create a viable business model which doesn't center around assuming that paying customers are gonna fuck them over.

    DRM rarely does much to screw over pirates. It does do a whole bunch to fuck with legit customers, though. You know those unskippable FBI warnings at the start of every fucking DVD? You know who doesn't have to sit through that shit? Pirates.

  5. The issue surrounding software is not as bad as it may seem. It's true that corporations want complete control over software, but it is equally true that this will never be possible, for a simple reason that you mention: it is easy to copy. No copy-protection will change that.

    Now, the hardware thing is much more disturbing. You should be able to use hardware in whatever manner you see fit. If you haven't been following the whole Playstation/Linux fiasco, you really should. Sony sued a programmer to keep him from distributing free and open-source software that allows users to install Linux on a Playstation 3. There is absolutely no reason that users should not be able to do this. Sony won this case, and that threatens a serious restructuring of what it means to own things. On an interesting side note, some view this ruling as the catalyst for the recent, and brutally embarassing, hackings that have plagued Sony.