Do you own the things you buy? Thanks to Congress, it depends.
It’s not a great year to talk about policy. But it should be — that’s what elections are supposed to be about.
When you buy a book, you own it forever. Same with a board game, a car, or any other physical product. You can keep it, sell it, alter it, or throw it away. Whatever you want, pretty much — it’s yours.
There’s a long legal history behind those rights, stretching back centuries to the common law principle of alienability — the idea that you can freely dispose of the property you own. It even applies to copyrighted works: You can’t make copies of your books and sell the copies, but the actual copy of the book you bought? You can resell it to whomever you want and for whatever price you can get, and the publishers can’t stop you. The U.S. Supreme Court recognized this “first-sale doctrine” in 1908, and Congress codified it the following year.
Seems straightforward. But once things become digital, this idea gets turned on its head. Now, you don’t own your e-book, or your downloaded video game, or even the software in your car — the company is just letting you use it for a while.
This development was a choice — one that leaves consumers holding the short end of the stick.
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Your ownership of digital properties is not ownership in the way we usually think of it. You own a license to your Kindle books and Amazon Prime movies, a license that can be revoked for any number of reasons beyond your control. It’s not very common — most businesses, even monopolies, don’t go out of their way to annoy customers — but it’s possible, and it happens from time to time.
It’s all legal because the terms of the license are spelled out in the agreement you digitally signed when you opened your account. You probably don’t remember that because you didn’t read it — no one does.
This legal change manifests itself in ways you might not expect. When the owners of some copyrighted works — including the works of Roald Dahl — decided to “update” them for our more tremulous times, buyers of digital versions saw the work they bought altered. They kept the license to it, but it was no longer the same thing they had purchased. A 2023 New York Times story on the digital switcheroo contained this quote from an Amazon spokesperson: “Publishers control the copyright for the books they publish and so control the content and updating of their Kindle books.”
Essentially, a reversal of a century-plus of American copyright law.
Starting this year, people who bought certain movies through Sony’s PlayStation system were also told they would lose access to those films, without compensation, because Sony’s license expired and was not renewed. After a backlash, Sony reversed itself, but only for the next two-and-a-half years. After that, it could all disappear again.
Another thing that’s copyrighted is software. As more and more things have some sort of computer components, everything that was once owned has the potential to become a temporarily licensed product.
In a few countries in 2022, BMW started charging a monthly fee to activate the heated seats in its cars. There’s no real need for this, just another way to extract money from the consumer. After a backlash, it backed down, but someone will try it again before long. You might not feel sorry for the owners of luxury cars, but like every other new automotive feature, this one will eventually migrate to the average Ford or Toyota.
The fight over software extends to the “right to repair,” as well — pushing back against companies legally restricting the ability of owners or independent contractors to repair their vehicles, phones, or any other thing with a computer in it. Companies have wrapped everything in licenses that reduce us all to passive consumers. Anytime you need to fix or alter a product, Apple or Subaru or John Deere will demand that only they can do the work for you — on their schedule, and at their prices.
Congress has been complicit in this, but the federal government has mainly facilitated the decline of real ownership by doing nothing. The landscape of digital commerce is devised less by Congress and more by corporate lawyers.
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Things are changing, slowly, in a few states, but in general, corporations still have the upper hand. It’s the perfect populist issue to campaign on, but don’t count on hearing it from either party this year. President Joe Biden and the Democrats rely on Big Tech donors and don’t want to rock the boat too much. Former President Donald Trump’s campaign will remain focused on himself and his legal troubles.
It’s not a great year to talk about policy. But it should be — that’s what elections are supposed to be about.
Congress could fix a lot of these problems, and state legislatures could fix even more. It is a symptom of our times, when politicians would rather yell at each other than govern when both parties claim to fight for the working class but do so more in vibes and speeches than in concrete action.
Amazon won’t go out of business if it is forced to grant true ownership rights in its e-books, and Apple won’t go under if you can fix your own phone. But they’ll never allow those things until someone in Washington makes them.