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Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 21, Issue 8

The Curious Case of Vanishing Movies, Music, and Books

By Zachary P. Grant

After buying digital movies, music, or books online, have you ever checked your digital library only to discover certain titles were missing? Have you listened to a music playlist that seemed a little shorter than you remember? If you have, you are not alone. Disappearing content is a growing issue in the digital age of media consumption and it has resulted in class-action lawsuits against Apple and Amazon.

When subscribing to content services like Netflix or Spotify, it is generally understood that the monthly payments give users a license to access a library of entertainment, but the user understands that they do not own any of the movies or songs. Once the subscription ends, access to the libraries are closed to the user. In contrast, a person who purchases physical media, such as a book or record, owns that physical object and may access the content freely in perpetuity.

However, the definition of “purchase” and “buy” in the online space — unrelated to subscriptions — is changing our traditional understanding of “ownership.” When a consumer chooses to “buy” a digital book from Amazon or a digital movie from Apple, there is fine print in the purchase agreements that gives Amazon or Apple the right to revoke access to those digital goods from the consumer’s digital library. The revocation of digital goods is not uncommon and often occurs when there is a licensing dispute or contract termination between the retail distributor (Amazon or Apple) and a media publisher.

As a result of such practices, Apple and Amazon are each facing class-action lawsuits in which consumers are seeking damages and injunctive relief under various California statutes related to false advertising. The statutory claims against Apple recently survived Apple’s motion to dismiss, meaning that the case will proceed to trial and the parties will have their day in court. Among the claims, the Court will examine whether a reasonable consumer would be misled by Apple’s use of the words “Buy” and “Purchase” when selling digital media that could be revoked from a digital library.

The outcome of these cases could impact how digital goods are sold and marketed, especially regarding transparency of how retailers define words like “buy” and “purchase.” In the meantime, it is important that consumers are aware that when they purchase certain digital goods, they may not truly “own” that commodity in the traditional sense. If you are worried about losing an important piece of media, you may want to consider procuring a physical version. Some of us, after all, can remember when books were made of paper and music was sold in record stores.

In the next edition of FishBits mini articles, we lace up our boots as we explore the trademark dispute between the Girl Scouts of America and Scouts BSA (formerly the Boy Scouts of America).


Published September 24, 2021