When you buy a movie from the likes of Amazon or Apple, you agree to thousands of words of legalese – and we’ve been reading it.
There’s an interesting case going through the American legal system at the moment, which will determine whether Apple is able to continue advertising movies as ‘available to buy’ on its iTunes Store. Just behind this particular piece of legal work, Amazon is facing a similar case too, but for the iTunes example, a federal court in California is responding to a putative class action. The bones of it seems to be whether consumers are being told they get to ‘buy’ a film, when the last thing they end up doing is actually owning it.
Now this is nothing particularly fresh. You can go all the way back to the days of videotapes, where releases in the 1980s would contain a scrolling message explaining that the cassette you’ve bought gives you a licence to watch the film. That the movie still belongs to the movie studio concerned. And bizarrely, there always appeared to be some kind of line about you’re not allowed to screen the film on an oil rig.
This legal message is from an Australian video release, but the same text – save for changing the country name, obviously – is what we’d get in the UK.
Still, the warning was mitigated somewhat by the fact that you’d got a physical copy of the movie in question in your possession. No matter what lines of legalese were thrown at you, for a movie studio to withdraw your right to watch a film you’d purchased, they’d have to come into your house and get in.
Even if they wanted to, they weren’t daft enough not to see how the PR angle of that would look.
Yet in the digital world, those terms and conditions that the vast majority of us never bother to read – and they’re very much designed so we won’t, a point I’m coming back to – have a few more teeth to them. They have an awful lot of words too.
Going back to the video era in the 80s, those T&Cs needed to fit on a screen or two, else we’d have been there all day waiting for Batman Returns to start. That meant they needed to be distilled to something actually useful, albeit usually with some variant of ‘all rights reserved’ tagged on, three words it would have been fascinating to see tested in court. Would Warner Bros Home Video had reserved the right to throw yoghurt all over my face and having a brass band stomping through my lounge while I tried to watch Robin Hood: Prince Of Thieves? I think not.
Buying films on the web though means there’s no such restriction in the length of a legal agreement when we use a service such as Prime Video or iTunes. By clicking to ‘buy’ a movie from either service, we instantly form a contract with Amazon or Apple in those cases, and it’d be fair to say that contract is not weighted in our favour.
The terms and conditions when I buy a copy of the latest Gerard Butler film from Amazon Prime Video or do a quick flick through what movies are available to stream on its service run to – gulp – 3421 words. I’d politely suggest that goes to the fact that these things are not supposed to be looked at properly by human beings, and I’ll hear an argument that they’ve not been written by them either. Yet by the apparent letter of the law – or at the least the agreement – I’m agreeing to all sorts of things should I should to forsake spending 20 minutes reading all this gubbins every time I want to watch something.
Around two thirds of the way through Amazon’s T&Cs for instance comes this little nugget:
Your compliance with all terms of this Agreement, Amazon grants you a non-exclusive, non-transferable, non-sublicensable, limited license, during the applicable Viewing Period, to access and view the Digital Content in accordance with the Usage Rules”
Those usage rules, it turns out, are on another page. Not to worry though: they run to a positively sprightly 2298 words. I’m up to over 5000 words, just to watch Greenland and fully know what I’m getting into.
But the fun really starts when we get to clause 4i in the Prime Video main agreement. Hold onto your butts…
Purchased Digital Content will generally continue to be available to you for download or streaming from the Service, as applicable, but may become unavailable due to potential content provider licensing restrictions or for other reasons, and Amazon will not be liable to you if Purchased Digital Content becomes unavailable for further download or streaming.
The word ‘generally’ appears to be doing some work there. It hits you with another corker in clause 4j.
We make no guarantee as to the resolution or quality of the Digital Content you will receive when streaming, even if you have paid extra for access to high definition, ultra-high definition, or high-dynamic-range content.
To my untrained legal eyes, that says to me that notwithstanding the fact that Amazon has sold me a digital film to ‘buy’ – I’ll go with the word film over ‘purchased digital content’ thank you – that access to it can be revoked. Not because of anything I’ve done, but because someone in a boardroom somewhere couldn’t agree a new licence for the movie, or imposed some restrictions.
Furthermore, if Amazon sells me a film at a premium for a high definition version – as it often tries to do – I have no guarantee at all that I’ll actually be able to watch it in HD.
Now Amazon isn’t daft. It knows that it’s bad form to revoke such access and present films in a lower resolution than a consumer thought they were buying. Furthermore, Amazon’s customer service is such that in the real world, it’s unlikely to be a problem to get a refund. But still: it’s faff, isn’t it? Why should the rights be weighted this way? It’d be remiss too to say that the revoking of paid-for material hasn’t happened in the world. The cases are sporadic – and the fact they get reported suggests just how few and far between they are – but this is still a thing.
In the case of the iTunes Store, I headed on over there to look at what I was committing too should I want to treat myself to a new Kevin Costner movie. As well as two hours of cinematic joy, I sought out the terms and conditions I’d be committing to for Apple Media Services should I give the firm my cash.
Turns out take as long to read properly as the new Costner movie takes to watch.
At the end of 7913 words – 23 pages! – the agreement signs off with “children under the age of majority should review this Agreement with their parent or guardian to ensure that the child and parent or legal guardian understand it”. I mean, there’s a bedtime story to read to them.
In fairness, this agreement covers all of the media that Apple sells you. But still.
Cheery highlights to watch out for here? Well, this paragraph’s nice…
Apple further reserves the right to modify, suspend or discontinue the Services (or any part or Content thereof) at any time with or without notice to you, and Apple will not be liable to you or to any third party should it exercise such rights. To the extent possible, Apple will warn you in advance of any modification, suspension or discontinuance of the Service. Termination of the Service will not affect the Content that you have already acquired. However, you may be unable to authorise additional computers to use the Content.
Apple already has stringent limitations on the number of devices you can watch – ugh – ‘content’ on, and notwithstanding the fact that you pay your money with that provision in place, it can be taken away from you.
Mind you, pretty much everything can. The agreement appears to be updated at least annually if not more frequently, and as always, us humble consumers and Kevin Costner fans are not holding the cards.
Apple reserves the right at any time to modify this Agreement and to add new or additional terms or conditions on your use of the Services. Such modifications and additional terms and conditions will be communicated to you and, if accepted, will be effective immediately and will be incorporated into this Agreement. In the event you refuse to accept such changes, Apple will have the right to terminate the Agreement.
With the agreement terminated, so goes access to the material that you’ve ‘bought’ – although again, Apple’s customer service tends to be quite alert.
Still, I’d love the tables to be turned. That a group of a couple of million consumers found a way to band together and provide these huge conglomerates with terms and conditions for dealing with us. But, yeah, the world is hardly weighted that way.
The court case going through the American legal system will seemingly at best for consumers force Apple, Amazon et al to change their language slightly. That they won’t be able to describe digital movies as available to ‘buy’. Furthermore, it’s hard to see consumers hovering their digits over a button marked ‘acquire digital content’ or something of that ilk. It’ll present a problem should the case be successful, although in reality it’s likely to get bogged down in the system for years one way or another.
And in that time, a few updates to an agreement or two that nobody wants to or generally does read is likely to step around the issue anyway.
It’s a predictable conclusion that physical media is the closest us consumers get to a foolproof way of protecting our movie purchases. But it might just be the only way I’ve got of keeping my Blu-ray of Geostorm safe for all time…
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