Last week, Anders Gonçalves da Silva realized that Apple had deleted three purchased movies from his iTunes account. His tweetstorm about the incident went viral:
Apple offered da Silva two free 48-hour movie rentals for his trouble. But understandably, he wasn’t satisfied. He paid about $20 apiece to “buy” these movies rather than $5 to rent them for a reason. But as his experience illustrates, precisely what it means to “buy” a digital good is a contested question.
Though Twitter users seemed shocked by the tale, the issue of digital ownership isn’t new. Content available for sale in one country may be unavailable in others, which may partially explain da Silva’s troubles. Perhaps more importantly, digital retailers like Apple and Amazon commonly remove content from their storefronts. A copyright holder may pull a movie or album, or even replace it with a new version. Almost a decade ago, Amazon remotely deleted purchased copies of e-books from its customers’ Kindles without notice or consent. The company promptly issued full refunds, but the intrusion sparked controversy, fueled in part by the fact that George Orwell’s 1984 was among the deleted titles. More recently, Apple has faced criticism for deleting purchased music from the accounts of iTunes users. My 2016 book with Jason Schultz, The End of Ownership, drew on these and other examples to chart the erosion of our property rights in the digital economy.
That erosion is due in part to the emergence of end-user license agreements and terms of service that attempt to contract away ownership in fine print that few of us bother reading. These terms frequently insist that digital content is “licensed, not sold” in an effort to deny consumers the traditional rights of possession, use, and transfer that come with ownership. Deep within its 7,000-word iTunes license terms—which exclude the company’s linked 4,000-word privacy policy and 1,500-word iTunes gift-card rules—Apple addresses the risk of deleted purchases. If you wade through those documents, you would discover that Apple “reserves the right to change, suspend, remove, disable or impose access restrictions or limits on [content] at any time without notice or liability to you.” And it warns that “content may not be available for Redownload if that Content is no longer offered on our Services.”
So perhaps da Silva is somewhat to blame for failing to back up his purchases. But digital retailers have intentionally blurred the line between local and cloud storage, leaving consumers unsure which files are saved locally and which are on a distant server—and uncertain about why it matters. And some devices, like the Apple TV, don’t permit permanent downloads in the first place.
Far from excusing Apple’s mistreatment of its customers, the iTunes terms highlight the growing mismatch between what purchasers of digital goods expect and what retailers and rights holders are willing to give them. That disconnect can be traced to the language digital retailers like Apple and Amazon use to market digital books, music, movies, and games. They implore us to “buy now.” And in doing so, they leverage long-standing consumer expectations formed through a lifetime of buying physical goods.
The tendency of the “Buy” button to mislead consumers isn’t mere speculation. As Chris Hoofnagle and I demonstrated in a study published in the University of Pennsylvania Law Review in 2017, transactions labeled with the “Buy” button are more likely to mislead consumers about whether they can keep, lend, resell, or use their digital media purchases on the device of their choice. In our survey, consumers who were instead presented with a concise, prominent notice of the terms of the deal exhibited a more accurate understanding of their rights. Even the Department of Commerce Internet Task Force expressed concern that the “Buy” button misrepresented the nature of these transactions. Nonetheless, Apple, Amazon, and other digital retailers have refused to alter the language they use to promote the multibillion-dollar digital media market.
What, if anything, could convince these trillion-dollar corporate monoliths to end their decadelong false-advertising scheme? So far, a combination of mandatory arbitration provisions, small individual damages, and growing judicial hostility to class-action lawsuits has dissuaded civil litigation against the digital retail giants. Regulatory intervention appears to be the most, and perhaps only, viable option.
As it turns out, we have a federal agency that is perfectly positioned to address this problem. The Federal Trade Commission is charged with protecting the public from false advertising and deceptive business practices. And when it shows interest, it usually gets results. When the FTC challenged the use of the term free in mobile app stores, for example, Apple agreed to drop “Free” in favor of “Get.” Amazon fought the case in federal court but ultimately lost. And when Google-owned Nest decided to remotely deactivate every Revolv home automation hub it sold, an FTC investigation was instrumental in securing full $299 refunds for owners of the bricked devices.
Hoofnagle and I briefed the FTC on deception related to the “Buy” button in early 2016. But the commission took no action at the time. Given its limited resources and broad responsibilities, that was no surprise. But there are signs that the issue may be back on the commission’s radar. In response to da Silva’s tweet, FTC Commissioner Rebecca Kelly Slaughter agreed that Apple’s behavior “raises serious concerns and merits close scrutiny,” pointedly linking to a dictionary definition of buy. Given the typically measured public comments of FTC commissioners, Slaughter’s tweet may signal an important shift in priorities at the FTC.
Perhaps this means the deceptive use of the “Buy” button on digital goods will finally get the scrutiny it deserves. If so, retailers and copyright holders have two options. They could renegotiate their license terms to give those of us who “buy” their products meaningful ownership of them. Or they could communicate clear and accurate information to consumers about the products they offer. Either way, Apple and Amazon should not be allowed to promise consumers one thing and sell them something else.
