Physical media ownership has rapidly declined in the last two decades. Digital files have replaced CDs and DVDs, and most game purchases happen online.
However, many of us are finding out that we might not actually own our digital products. From purchased movies disappearing from online libraries to DRM-riddled games bought from digital stores, we seem to be trapped in a “digital tenancy” that limits our access to content we have bought legally.
What is digital tenancy?
The most recent case revolves around Amazon’s alleged right to revoke access to purchased video content. A disgruntled customer filed a lawsuit claiming that Prime Video’s “buy” option is false advertising.
Unlike many other streaming services, Prime Video not only gives you access to selected content with your monthly subscription, but it also allows you to rent or buy movies. The latter is explicitly advertised as a purchase and its price reflects that. Recent movies usually fall in the $9.99 to $14.99 range. Let’s take Alita Battle Angel for example. The movie came out in 2019 and costs $14.99 as an HD digital purchase, while its DVD can be found on Amazon for a very similar price.
It is therefore reasonable to assume that once you buy the movie — digital or not — it’s yours forever. That’s what the customer who filed the lawsuit thought too.
The company also states that it cannot be held liable “if Purchased Digital Content becomes unavailable for further download or streaming.” In other words, you are not buying a product, you are simply “licensing” the right to view the content on Amazon’s platform and your access can be revoked at any time.
Why is this different than not having access to your downloaded Spotify songs after your Premium membership is canceled? Because with subscription services like Netflix and Spotify, you are paying for access to their catalog. It is more akin to renting than buying, and that’s pretty clear from the start. When there is a “buy” button, however, it feels incredibly dishonest to claim that customers then don’t own content they have bought with the intent to keep.
Even if it might be technically legal, it’s a profoundly anti-consumer practice.
The worst offenders
Amazon is far from alone in this practice. Online game retailers are among the worst offenders when it comes to digital tenancy. Pretty much all big players, such as Steam, Origin, and the Epic Games Store, do not grant you ownership of purchased games, despite the ever-present “buy” button. The Steam Subscriber Agreement, for example, clearly states that, “the Content and Services are licensed, not sold. Your license confers no title or ownership in the Content and Services.” The Epic Games Store repeats this mantra almost verbatim: “Through the Services, Epic may enable you to purchase Software licenses and/or Services using your Epic account.”
This means that if these online stores decided to remove your favorite game from their libraries, you have little recourse: legal or otherwise. DRM or Digital Rights Management tools, on the other hand, can prevent you from playing a game even if it’s installed on your device. In a worst-case scenario, if these online stores close down you could lose access to your full library.
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The lines are even more blurred with cloud gaming services like Google Stadia. This is because you only have the ability to stream purchased games, not download them. Therefore a shut-down of the service likely means you will lose access to them forever. With Google’s track record in mind, it’s hard not to be concerned.
The question we have to ask is why is this practice still so common. A retailer cannot decide that you were licensing your clothes and come knocking at your door to collect them. So, why is it that when a product is digital there is such a double standard? The money you spend on these products is no less real than the money you spend on clothes. Just because a game file is not a physical product, it does not mean you should have to forfeit the right to full ownership.
What can we do to stop digital tenancy?
So, how can the problem of digital tenancy be solved? Currently, there seem to be few statutory laws which directly address the ownership of digital goods. The First-sale doctrine, for example, still largely applies to physical goods in the US. There have been multiple precedents in the EU, however. At the end of 2019, the High Court of Paris ruled that Valve must give Steam users the ability to resell their games. According to the court, preventing them from doing so would be in violation of EU laws that allow the free-flow of goods in the Union. Valve is currently appealing the case.
Unfortunately, we need to start reading all those boring End User Agreements.
Nevertheless, the court’s ruling demonstrates a commitment to treat digital goods no differently from physical ones. In my view, however, some further steps are necessary — in the EU and the rest of the world. Online retailers should not be allowed to use the terms “buy” or “purchase” when they are only granting a license. They should either be required to label licensing as such or only be allowed to sell digital products if they provide access to a file that’s not tied to the use of their platform. At the very least, companies should provide full refunds for content that is no longer available.
Yet, there is something to be said about consumers too. No matter how tedious, we need to start reading End User License Agreements, Terms of Service, and Privacy Policies. It’s a necessary step in understanding what we are actually buying and in stopping digital tenancy. If we are not aware of a problem, we cannot demand change.
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