I got up at an ungodly hour this morning — at least for me — to see my son off on his third trip out of town for work in less than a week. So that left me waiting for the morning paper to arrive and, wanting to check traffic before he started out, I turned on the local news. Imagine my surprise to hear a quick news-bite saying that Bruce Willis was considering suing Apple over his iTunes library. Seems he read the terms of service — something I doubt many of us have done when we’ve bought music through iTunes or even e-books through other avenues — and he realized that, when he dies, his music defaults back to Apple.

Now, whether Willis goes through with suing Apple or not — and the media is showing contradictory stories about it this morning — it does bring up a couple of issues that have bothered me about not only music downloads but e-books as well.

First is an argument you will hear from a number of Amazon haters. They won’t buy from the Kindle store because they don’t like the DRM that Amazon applies to their sales and they don’t trust Amazon to keep their books forever and ever. Well, guess what. This same argument can be applied to just about any online retailer of digital goods, including Apple. It applies across the board to music, video, e-books and gaming. And, if you look at the fine print in the terms of service for just about any of these sites, you will see that they all say they can suspend or terminate their services at any time. In other words, your digital content may be available one day and gone the next because they have suddenly decided to no longer trade in that particular market.

Is this a concern? Should it be a concern? Absolutely. It is one of the reasons those who have found ways around DRM have done so. It is why you can find free plug-ins for programs such as Calibre to help you break DRM in your e-books. After all, that is the only way to insure that you will be able to enjoy your digital products on whatever your device in the years to come. Those of you who were early e-book adopters probably know first-hand what I mean. How many of you have lost the ability to read some of your e-books because Adobe changed its format and your older e-books no longer work or your computer crashed and the registered program you used to read those books is no longer around?

In fact, if you research DRM, you will see that Apple and iTunes regularly alter the DRM applied to digital downloads just to prevent folks from being able to break it. Why? Because they are, in my opinion, more worried about keeping their suppliers happy than they are their customers.

But the real issue in this is simple. When we buy an e-book or a song or album, a movie or game in digital format, what are we buying? If you ask most consumers, we are buying the book or song or album, etc. In other words, we are buying basically the same thing as we’d be getting if we were to go out and buy the printed book or the DVD/CD, etc. But if you ask Apple, etc., we aren’t buying the actual book, etc. We are buying a license to read or listen or play the title. That’s it. All the boilerplate and legal jargon in the terms of service we have to agree to confirms this.

And this is where things get sticky.

Let’s go back to the issue Willis has raised. He’s spent thousands of dollars on titles from iTunes. He could have spent that money buying tapes and CDs and vinyl. If he had, there’d be no question about him being able to bequeath those titles to his daughters upon his death. But, because he bought them as digital downloads from iTunes, he can’t. Oh, he can leave them his devices that are tied to his account and that have had the music/videos/e-books downloaded to them. But that is a short-term solution at best. For one, upon his death, his account will be terminated. That means no more downloads, no more tying of devices to that account, etc. So, unless the items are currently downloaded onto some device at the time of account termination, they are gone and there will be no way to retrieve them. If those devices that are loaded with his titles fail or are lost, etc., those titles are gone. They can’t be downloaded again.

Okay, I can hear someone out there saying that, had he backed up his purchases, then we wouldn’t have this problem. The problem with that argument is that not all titles are “burnable”. Plus, with the DRM, you’d have to have the “keys” to be able to break it and load it onto another device.

When we buy a book in printed format or we buy a CD or DVD, whether it be a game or a movie or music, we “own” it. We can keep it, throw it away, give it away, will it to someone after our death. Sure, publishers and others don’t necessarily like it, but that’s the way it is. The fact that digital downloads are looked at as “licenses” blows my mind. Folks, licenses have strings attached. It means we don’t own something we have paid good money for. Frankly, it is an insult to consumers.

I cannot and will not tell anyone to void their contract with a seller or to violate the law by breaking DRM. However, I can and will suggest you look at where you buy your digital content and determine if you are really buying the content or only renting it. Yes, that’s how I look at the licensing of digital content. If I can’t do with it as I wish, if I can’t at least back it up without having to jump through hoops that can get me into trouble, I don’t own it.

Okay, Apple isn’t going to disappear any time in the immediate future nor is Amazon. So my digital purchases with them are probably safe. Of course, if they have major server blow-ups, it might be unavailable for awhile. Still, the unforeseen does happen. I want to control my purchases and not have that control dictated to me.

So, back to Willis. If he decides to actually go through with suing Apple, will he win? Probably not. For one thing, he’d have to bring in any publishers, musicians, etc., who put the titles up for sale through iTunes to begin with. Rich he may be, but he doesn’t have the almost bottomless pockets for a legal campaign Apple does. But he has brought up something we should all be thinking about and talking about.

To paraphrase the definition, a contract is an agreement between two or more people or entities where someone promises value for benefit. The value in this case is money. The benefit is the digital content. However, is it really a benefit if you don’t own it and can’t do with it as you wish? In other words, why are we agreeing to less of a benefit when we purchase a digital version of something we can buy for the same price, or less, in physical form?

UPDATE:

Just minutes after posting the above, I came across this article. It seems folks in the know have said that Apple and four publishers are willing to make concessions with the EU to bring an end to the price fixing investigation/litigation overseas. These concessions allegedly include allowing sites such as Amazon to sell e-books at a discount for two years. Hmm….sort of sounds like what the Justice Department is requiring here and that these same parties are refusing. It will be interesting to see what happens and how it impacts the proceedings here.