EULAgizing Amazon Unbox
I suspect my tone sounds a tad hostile but I don’t really mean it that way. For better or worse, this is exactly the design we should anticipate with digital rights management software and therein lies the central market conundrum for DRM. Indeed, I am surprised that folks are surprised by the design. It may be sensible for the law to validate DRM as it does in the Digital Millennium Copyright Act, as I have argued before, but that is a far cry from saying the consumers will embrace it. The law should facilitate sales of purple shirts with pink and yellow polka dots, but no one should buy them.
Given that Amazon intends to support both online sales and rentals, it either needs to implement built-in expiration or some sort of phoning home to the mothership. The rental structure contemplates a 24-hour window in which to watch the download and a 30 day period in which to start watching.
Section 3 also sets forth the remote destruction policy: “if you uninstall or otherwise remove the Software, your ability to view all Digital Content you have downloaded to the Authorized Device will immediately and automatically terminate and we reserve the right to delete all Digital Content from that Authorize Device without notice to you.” As Gus pointed out in his comment on my last post, this isn’t your father’s version of a sale. Old-school sales meant that when you purchase something you actually have it. Here even for “purchased” content, breaking off contact with the mothership forfeits the content.
The third item of interest is the soft contractual rights established by the terms of sale. By soft rights, I mean “rights” that you have until you are told that you don’t. In section 9 of the terms of sale, Amazon reserves its right to make an assortment of changes. Subsection c: “if Amazon changes any part of the Service ..., you acknowledge that you may not be able to access, view, or use Digital Content in the same manner as prior to such changes, and you agree that Amazon shall have no liability to you in such case.” Subsection d: “Amazon reserves the right to modify, suspend, or discontinue the service at any time without notice to you, and Amazon will not be liable to you should it exercise such rights.” Subsection e: “Amazon reserves the right to make changes to this Agreement at any time. Your continued use of the Service following any such changes will constitute your acceptance of such changes.” OK, we get it.
Put this way, all of this sounds extraordinarily one-sided, but I am not sure that that is completely right. We do see rights of this sort in other contexts. So if you look at the University of Chicago benefits package, there are certainly some rights which are of the form “you have this right unless we change our policy.” The point of the soft right is to preserve flexibility going forward and to try to ensure that past practices don’t create enormous legacy rights going forward. An intergenerational fail-safe or flexibility to address changed circumstances. At the same time, in actual cases, the right is probably enforceable against arbitrary manipulation (the difference between deciding particular cases and establishing general rules).
I don’t really do contracts for a living, so I don’t know if there have been cases litigating whether the soft rights are actually enforced as hard rights or whether the entities giving soft rights are able to sustain unilateral changes in those rights. (If you know of cases on that, please comment.)
Soft rights are not enforced then by the standard mechanisms of contract law, such as a lawsuit by the other party to the contract. Instead, soft rights are set by the market, meaning by competition with other providers and by what consumers are willing to accept. In the online service contract, soft rights ensure the service provider can evolve the service over time and be in the position of only offering one version of the service. The provider doesn’t want to have to support legacy versions of the service. The power to change the service so that one version is always being provided reduces the cost of providing the service and ensures that the provider can continuously make changes to the service. If competition is actually working, those changes should be in the joint interests of content producers, download service providers and user/consumers.
In many ways this is an unremarkable DRM contract. As I have noted in other work, phoning home may very well become ubiquitous. It is one of the distinctive features of the networked age. I don’t have a good sense of the pervasiveness of soft contractual rights but my guess is they are fairly widespread especially in online contracts. Connecting at a distance brings other possibilities, including the remote destruction that we see here. But that said, I don’t fully understand why Amazon believes that it needs to implement remote destruction of “purchased” content merely because someone exits the service.
There is clearly a question of notice to consumers here, as I believe that Cory Doctorow pointed out in a post on this. Amazon gave clear notice when it was selling copy-controlled CDs. I don’t think they are being as transparent in indicating the limitations of Unbox video downloads. I doubt that that is in Amazon’s long-term interest. It is too successful a company to want to taint its image in what for now at least is a sideshow business. I also suspect that we will work our way to a legal regime that will require better notice than Amazon is giving here.
Finally, DRM ultimately faces a market test: Will consumers buy the product? They clearly have purchased DVDs, subject to encryption, and Apple has obviously become the dominant seller of online content, notwithstanding its use of FairPlay DRM. Products have to offer substantial advantages to overcome consumer resistance to DRM, and it is clear to me, at least for now, that Amazon Unbox video is a long, long way from doing that.