What rights do consumers really have when “buying” digital products online?

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When you “buy” a copy of a movie or music mpeg online, do you have the right to lend or give that copy away, just as with physical phonograph records, CDs, VHS or Beta tapes, or of course DVD’s?  All of this is related to the “first sale” doctrine.

Don’t confuse this with another idea:  under the Digital Millennium Copy Right Act of 1998, you don’t have a right to make copies of the CD’s and DVD’s, and there are copy protection firmware devices to make this difficult.

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I can remember, back in the 1960s, myself and another friend sometimes made open-reel tapes of records.  I remember taking a tape of Verdi’s Requiem and other favorite records on my first extended business trip to Indiana from the East Coast back in 1970 (throwing a tape deck in the trunk for the temporary move).  This was probably illegal, but we justified it morally because we both bought a lot of vinyl records.

But even to share or lend digital copies, it seems not.

Electronic Frontier Foundation has an article by Kit Walsh, “What do costumers think when they buy digital media online?”   The article goes into the differences between “Buy Now” and “License Now”.  It would seem intuitive that “License now” would confer fewer rights.  It would be more like renting a movie or video for a short period.  The paper refers to a U-Cal Berkeley study of “What We Buy When We ‘Buy Now'” by Aaron Perzanowski and Chris Jay Hoofnagle.  (I am reminded of “Buy More” in the NBC “Chuck” series with Zachary Levi.

My experience is that when I buy a copy of music or a movie, I own the “copy” in the Amazon or Apple cloud.  I do depend on the companies’ staying in business and for the cloud infrastructure to work (not be destroyed by enemies and hackers, but that can happen with physical property).  I did have a problem recently working with an Amazon rental (it needed a new Silverlight version) and an opera  (Chris Cerrone’s interesting “Invisible Cities”) MPG (had trouble saving it, but I had watched the opera “free” on YouTube and effectively paid the artist through Bandcamp about $10 for what amounted to a rental or a  Soho-style theater ticket).

Keep in mind another possible threat: items stored in clouds (“nuages”) could someday be scanned for illegal content.  Maybe a recent strengthening of electronic privacy (countering the 180 rule) will help counter that risk (Congressional link on HR 699).  This concept could come up either with direct cloud storage or with saving an object on one’s own hard drive and allowing a cloud backup service to archive it. Stay tuned on this.

(Published: Friday, May 13, 2016 at 2 PM EDT)