Why we expect to own what we buy

Everything digital you buy doesn’t become yours. You license it from whoever is selling. This is how software, movies, games etc. all work and is true even when there is no recurring fee. It’s simply a fact that you don’t own the digital stuff you … own 1.

Despite what some might write in a court filing, this is clearly not self-evident. Let’s take video games as an example. When you ask someone if they have played the game Control, they don’t respond with “I haven’t, but I have a license for it on Steam.” They will use the word “own” as in “I own the game on Steam.”

And that isn’t a linguistic thing either. People clearly have good reason to believe that after spending 60€ 80€ on a video game, which, mind you, is the same price you would pay at a store, that they own the game. And why wouldn’t they? You put the game in your shopping cart, go to the checkout, pay the 80€, and receive a copy of the game in return. Note that the previous sentence describes both the experience you have in a physical and a digital store — although I will admit that shopping carts play, at most, a minor role in most physical purchases of video games not bankrolled and executed by a parent.

Even after the purchase the experience stays largely the same. The game is in your library and you can play it whenever you want. Even the fact that the platform does not allow you to sell the digital copy of the game you have isn’t a clear indicator of anything. That could be the case for any number of reasons, a limitation of the platform or the DRM or any number of other things that have nothing to do with whether you legally own a game.

It is very hard for me to believe that someone, even a reasonable someone, could intuit that receiving the game on a disc means they own their copy, while downloading the same game from a server means they do not.

I want to reiterate that I believe this has nothing to do with the words a digital storefront uses. It matters not if the button says “Buy” or “Purchase” or whatever. Forcing a user to agree to a “Subscriber Agreement” before the purchase is similarly insufficient. The core issue is that a digital video game is the equivalent of a physical one minus the disc … Oh, and ownership, almost forgot that myself, it feels unnatural to put in that list even as I am writing this post. Then why on earth should we believe it somehow obvious to anyone?

And this generalizes to every digital good that has a physical counterpart. Why would a consumer know that they own the books in their bookshelf, but not the ones they bought for their Kindle, own the movies they have on Blu-ray, but not the ones they bought from Prime Video, own the music they have on CD, but not the ones bought on iTunes?

They simply don’t.

I write this blog post because Sony is currently in the news for arguing that a reasonable consumer would not be misled about their ownership of digital games when purchasing them on the PlayStation Store. This comes from a motion in Garcia v. Sony Interactive Entertainment, and in the reporting I have seen, no one quoted the fun part of Sony’s argument — and before you stop reading because lawyers and court filings are boring, trust me on this one, it’s hilarious:

You see, the reasonable consumer exists in a parallel universe, not unlike our own. The only difference is that in that universe, saying you “own” a copyrighted work can only mean that you own the copyright itself. They simply don’t have the concept of owning a particular copy.

Through quantum entanglement and other science mumbo jumbo, a court filing from that universe has somehow found its way into ours. Quite remarkable, if you think about it.

In our universe, thankfully, we aren’t quite so extreme. Here you are perfectly capable of owning a copy of a copyrighted work without owning the copyright outright. As such, Heycock and Mendoza could both be perfectly reasonable in assuming that they each owned their own copy of Resident Evil Requiem.

Astonishingly, copyright law has accounted for the existence of more than one copy.

As an aside, notice how Sony put the word “ownership” in quotation marks. That might actually be a great way to communicate to a consumer what they are buying:

I dismissed arguing from linguistics, but I want to offer a counterexample 2. In Andino v. Apple, Inc. — I know another court filing, but this is the last one, promise — Andino challenges the way iTunes offered 3 two options for movies: “Buy” or “Rent”.

The rental option gave consumers access to a movie for a limited amount of time at $5.99, while the “Buy” option offered the same movie for a one-time price of $19.99. Andino’s argument is less about the specific legal meaning of the word “Buy” and more about the contrast Apple itself created by putting it next to “Rent”. If renting means access for a limited time then what is a consumer to assume buying means?

The judge declined to dismiss the consumer-deception claims. At that stage, the court found it at least plausible that a reasonable consumer would expect their access to content they bought not to be revocable. The court leaned on the definition of the word “Buy,” citing Merriam-Webster and writing that “in common usage, the term ‘buy’ means to acquire possession over something.”

Personally, I disagree with Meriam-Webster and the court here. I know that might seem quite presumptuous, but this is my blog and I get to do what I want. In short, I actually don’t strongly associate the word “buy” with ownership. “I bought myself a massage” sounds fine, as does “I bought a subscription”. “I bought her silence” implies clearly no ownership, at least not in the sense we are talking about.

The association is considerably stronger when buying an object. “I bought a movie” does imply ownership in my mind and my understanding of what the word “buy” means does contribute to that. But I think it moves beyond that, the reason that buying a concrete object implies the transfer of ownership is more than just because that’s what the words mean.

It’s because that is what buying things has meant for generations. When you go to a store and exchange money for a book, you take ownership of that copy, not a license to keep it on your bookshelf until such a time that the bookstore owner decides otherwise.

It’s the “ceremony” of it all. The experience you have when you make a physical purchase implies the transfer of ownership. Digital purchases copy that experience and thus copy the implied transfer.