Rumours circulated, were reported in the Mail, Sun and Guardian that Bruce Willis wanted to sue Apple over his downloads. It wasn't true, but there is a kernel of fact: you really cannot legally pass on your digital music collection in your will.
Traditionally, a CD or book has a copyright licence for the work that is embodied in it. However, the law says that copyright is irrelevant – “exhausted” – when the goods are resold.
This has changed in the digital world. Copyright owners assert that digital goods cannot be resold, lent, transferred or passed on at death. Licenses are usually pretty clear about this, but the result is that digital goods are significantly worse investments than their physical counterparts.
Obviously, there is the problem that digital goods might be sold, while the original copies are retained. For this reason, copyright holders have persuaded legislators that resales or transfers of downloads should not be permitted. But as Bruce Willis has found out, that is highly unsatisfactory.
I expect most of will spend thousands of pounds in our lifetimes on music, books and films. On the basis that a few of us might cheat, we are all being asked to sacrifice our investments.
A recent decision in Europe has made the matter clearer and more consumer-friendly, but just in the case of software. This July, the Grand Chamber of the European Court of Justice told Oracle that UsedSoft could indeed resell Oracle licenses.
The law for software is somewhat different than for books and films. The court said that a European software directive makes it clear that software can be resold, and contractual terms saying that licenses are ‘non-transferable” cannot change this.
The ruling means many companies have been overstating their rights for years. Quark for example used to claim that their software on CD ROMs supplied was ‘non-transferable’. It seems they were very wrong.
You can, the ruling says (if you keep your original receipts) legally resell digital software downloads in Europe. This is a good thing, as it helps keep prices lower, and stops companies from cheating.
But the same principle does not yet apply to film, music and books. These are arguably things that we are more likely to want to resell, or leave in our wills. Software, after all, goes out of date as we replace our gadgets every few years. The same is not true for books, films and music. We might keep listening to some of the same songs for years, and we like to keep books for reference, often for decades. They may also be of value to our sons and daughters
In short, we expect rights to lend, sell or transfer digital goods, but legally they no longer exist.
In the case of digital books, there is no second hand market. Amazon have made tentative steps towards allowing people to “share” books – albeit only once, and then for only two weeks.
Worse is the way that digital books are being restricted when licensed to libraries. Because the numbers of loans can be counted, publishers want to limit the number of times a library can issue them. Digital creates greater ability to control usage, to the apparent advantage of the publisher.
However, there is some danger that publishers will throttle the market, as second hand copies, libraries and personal lending form a large part of the way people learn about authors.
It wouldn’t be the first time that copyright owners have shot themselves in the foot. Informal advertising and exposure is by far the biggest part of how we learn about artists, from music on the radio through to borrowing DVDs. Once we become fans, then we spend money on their stuff. Too much control by copyright owners, and their revenues could be threatened as people stop experimenting for free.
It’s not just the things you buy that you are losing control of. The digital assets you personally create are at risk in other ways, too.
Stories have started to appear about the difficulties of accessing information that people store on the Internet once they die, like social media and email accounts There is no guarantee that your relatives can access your accounts. It turns out that it isn’t your decision to make.
Yahoo! for instance are clear that access to your account dies with you. They operate Flickr, which many people use to store high resolution photos. It seems pretty wrong to refuse access to Flickr accounts when some dies. After all, someone inherits the copyrights, so why shouldn’t they be able to gain access to the files?
Still, while we may lose some legal rights over our accounts, and the films and books we download, the companies gain some pretty extreme rights to spy on us while we watch them.
Digital represents an unprecedented source of information about how we consume goods. Amazon hopes to learn about the points we put a book down, when we stop reading, or when we can’t resist a page-turner.
Jo Glanville, the head of English PEN says in the Guardian, companies like Google and Amazon seek to know:
“what we buy, what we browse, the amount of time we spend on a page and even the annotations we make in an ebook. As campaigners have quipped, it's the equivalent of a bookshop hiring someone to follow you round the shop noting every book you pick up, then sitting at home with you while you read what you bought.”
Librarians for years defended our right for the state not to know information like this. Yet it is now very easily accessible, and that is beginning to cause some alarm. California has legislated to restrict law enforcement’s access to digital reading information. Yet only a few years ago, American librarians were forced to fight attempts to compel libraries to tell the US secret services what people were reading.
The libraries were outraged when they realized they could be told to hand over readers’ information in “national security letters” issued under the Patriot Act. These letters denied the right to inform the borrowers, or even to say that information had been sought by the authorities at all.
These “national security letters” have been issued hundreds of thousands of times to universities and ISPs among others. The librarians and the Internet Archive were among the few organizations that challenged the constitutionality of these secret orders.
One of the other challengers was Nicholas Merrill, whose ISP Calyx was asked to hand over user data by the FBI. He was personally shocked when he was told that he couldn’t tell anyone that he had been asked, and that there was no legal means to challenge the order. He went to the American Civil Liberties Union and the Electronic Frontier Foundation, and they fought the case with him.
Eventually, in 2007 after a three year case, he won. Only in 2010 was he allowed to reveal his identity. He still can’t say what he was asked to give to the FBI. But he has resolved to make it much harder for the FBI or anyone else to gain access to customer data, through much improved privacy technologies, and has created a non-profit institute to help build the software ISPs would need.
Back here, in the UK, we see different attempts for government agencies to grab access to our reading and communications patterns, most recently under the proposed “Communications Data Bill”.
One of the big flaws under this proposal and our current Regulation of Investigatory Powers Act (RIPA) is that people are never informed after they have had their information accessed. In the USA, prior to the Patriot Act, it was normal for someone to be told that the phone bill or personal details had been requested by law enforcement.
Protections like that can go some way to making sure that law enforcement doesn’t simply gain unfettered access to our personal information, placing us all at risk from identity fraud, private investigators or unscrupulous journalists. This is important for companies, just as much as us as individuals. If Amazon or Facebook want us to trust us with every detail of our lives, then we need to know that they won’t simply hand our life history over when a police officer drops them an email.
Whether you want to preserve your digital investments, or you are a whistleblower who needs confidentiality from potentially corruptible police, there is an intense battle over your data rights.
Left to companies and governments lone, you could well find that you won’t get the rights you deserve. That’s why Nicholas Merrill's interventions is so important.
A version of this article was first published in Custom PC Issue 1XX 2012