Ownership of Digital Material: I own it, so why don’t I have it?

This topic has been well-addressed by a lot of games journalists. The 4th-to-last panel in this comic summarizes the perspectives of many: http://www.escapistmagazine.com/articles/view/comics/critical-miss/8674-God-Emperor-of-Steam-Epilogue

Usually, we think owning something is having something. Even for claims to IP, which isn’t tangible, we have a unique and specific claim to the use of something. With some games, I seem to have a claim to use the software, but only at the discretion and convenience of the service; if the service is not functioning for some reason, I cannot play the game. I also cannot transfer the claim to play the game, as I could in the olden days of 2001 when we bought video games in physical format. One might argue that even buying a book was never an absolute claim over the book’s intellectual property. A copyright means that a bundle of rights are reserved for the author/artist/publisher/developer/creator/whoever owns them, and as such are off-limits to everyone else. Yet there is something different here: I could always resell my single copy of the book after I finished enjoying it. I cannot pass on the joy of a used copy of some games managed by certain species of DRM (or at least, with nowhere near the ease one might expect).

It seems that 99% of arguments about rights to own physical vs. digital objects are centered around the right to republish and redistribute (in one way or another). With only circumstantial evidence, I speculate that the overwhelming impetus behind software developers’ decisions to use digital rights management procedures and mechanisms is to curtail the economically harmful practices of the reproduction of their works.

While some may argue the business practices of EA and Blizzard are not economically sustainable, my question is about the legal sustainability of DRM: “Do practices like ‘always-online DRM’ violate fundamental legal principles of ownership?” While they seem to violate some ethical and cultural notions of ownership, they do seem legally permissible.

One of the early lessons in first year contracts in law school is that you can contract out of, or around, almost anything. If you sign (or click accept) a contract that says you agree to limited circumstances of ownership, there isn’t much of a case that you are entitled to more than your contract permits. For example, Steam’s EULA reads: “All… ownership rights … to the Software and any and all copies thereof, are owned by Valve US and/or its or its affiliates’ licensors.” (Section 2, paragraph E: Ownership). Valve owns the software; we humble peons are merely licensed to play with their toys when Steam feels ok with it.

Illegal contracts are not recognized by courts, but consent to not sell a legal videogame is not an illegal contract because neither the subject matter nor the nature of the contract violates the law. So long as the publisher includes some kind of contractual agreement that you acknowledge and accept the DRM restrictions placed on your game, it seems entirely unlikely that there is any legal recourse available to fight these restrictions.

So let’s hope these practices prove economically unfeasible very, very quickly.

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