This month’s guest post is written by Thomas Smith. Mr. Smith’s company TechEn enterprises llc works with companies to achieve strategic, controlled and managed deployment of Google Apps.
Microsoft, Apple and Google are each giants in the “digital data” selling business. Most of us (if not all) have acquired “digital data” at some time from one of them. We pay real $$s to purchase programs, music downloads, e-book files and database extracts.
After purchase we use it, maybe sell or exchange it, and transfer it amongst digital devices. If we paid for it that means we OWN it - Right? In many cases, digital data you pay for, you DON’T own - that which you don’t pay for you DO own. The following factors are used within ownership law:
- is it on “tangible media” or not?
- do you have physical possession?
- was it acquired or did you create it?
- is there a specific contract that specifies the ownership terms?
DISCLAIMER – I am not an attorney and nothing written here constitutes nor represents legal advice. Consult an attorney for specific questions or legal advice.
What I do offer below is considered common industry practice, yet common practice doesn't mean it's always common knowledge. So in the interest of public awareness, three common categories of digital data are discussed below through use of specific vendor examples.
1. Software Programs. For over 20 years Microsoft has been paid $ billions from people buying their software. A software program is digital data in every sense. The data are the computer language statements stored inside the program files that are placed on media (floppy disk, CD disk, DVD disk etc) and loaded onto your computer. Yet even though you have - tangible media and physical possession, two traditional legal hallmarks of having “ownership”, in fact you DON’T own the programs.
Part of the purchase involves agreeing to a EULA (End User License Agreement), which spells out the terms of ownership. In essence most EULA’s disclose that you never “own” the software, you only purchased (own) the right or license to use the software and even then only under specific conditions. The manufacturer remains the Owner of the program and typically - all intellectual knowledge associated with the program.
Do I Own any digital data? Yes, but this also can have exceptions. Generally you own the digital data created via use of the software program. Examples include; a story or book you write with word processing software, the design and logic (the intellectual property) inside a spreadsheet that contains a proprietary way to do certain calculations. You can even “own” software programs, those you build using other software designed for that purpose. So ironically in this case, you don’t own the digital data you paid for, but do own the digital data your created with it (didn't pay for).
2. Downloads (i.e. music and e-books). Apple Computer now makes more money selling downloaded iTunes music (digital data), than it ever made in the early years selling Macintosh computers. But ownership of these items gets even more confusing, particularly since we have pre-conceived beliefs about such items. The common belief is when we buy a music CD or paper-based book at a store, we “own” that item – and it’s true we own the tangible media part.
However, most people understand you don’t own the actual story or the song. Those items represent copyrighted material and are owned by the artist who created it. Yet current law provides legal right to lend, sell, or give the tangible media (CD) with its content away without having to get permission from the copyright owner.
In the case of downloaded music (digital data), the laws are materially different. Evidence of this is the fact the Terms and Conditions for the iTunes Store contains over 14,000 words of dense legalese. Amazon’s MP3 store Terms of Use while small in comparison, still has 1330 words. Below is an excerpt from an excellent article that goes into more detail on this topic:
“…Digital music downloads (just like movies and TV shows) come with a completely different, much more limited set of rights. If you buy a digital album from an online service such as the iTunes store, Amazon MP3, or eMusic, you have no legal right to lend that album to a friend, as you could if you had purchased a CD. If you decide after a few listens that you hate the album, well, tough. You can’t resell it. You can’t even legally give it away….” By Ed Bott | 1/3/11 ZDNet article
3. Cloud Computing. Google is a known leader in Cloud Computing and executes a constant exchange of “digital data”. We will use them as the example for this category in a subsequent blog post. Come back and check it out - you'll be surprised what you learn!
