In today’s digital age, many people have a library of digital assets that may include items such as books, music, and movies. One of the perceived benefits of owning these digital items is having a convenient way to access your favorite media indefinitely with just a few mouse clicks. However, is it as simple as it seems? How do you own what you cannot touch? And if you cannot handle it, how do you pass it on? For those who own digital assets such as digital movies, these questions are at the heart of a new and interesting paradigm.
When it comes to digital movies, “ownership” is not quite what it seems. In most instances, digital video providers do not give you actual ownership. Rather, you have purchased a license to use the product. Accordingly, what happens to your digital movies may differ from provider to provider.
What happens to movies purchased through Apple?
If you read the fine print of your Apple iTunes digital product agreement,[1] you will find language that encourages downloading content to make it more tangible. While Apple does not address streaming downloaded content, it places the responsibility for downloaded content on the purchaser, with some caveats:
It is your responsibility not to lose, destroy, or damage Content once downloaded. We encourage you to back up your Content regularly. . . . You may be limited in the amount of Content you may download, and some downloaded Content may expire after a given amount of time after downloaded or first played. Certain Content may not be available for download at all.
Apple’s terms do not specifically define ownership of streamed digital assets. However, by encouraging users to download and back up such assets, it contemplates ways to make ownership clear. The question then becomes, Can you pass your license to use the content on to your loved ones? A peek into another portion of Apple’s terms reveals the answer:
Licensor grants to you a nontransferable license to use the Licensed Application on any Apple-branded products that you own or control and as permitted by the Usage Rules. The terms of this Standard EULA will govern any content, materials or services accessible from or purchased within the Licensed Application . . . .”
This language means that you can neither transfer nor pass on your license to use these items to anyone else. It is only for you.
Apple’s Family Sharing provides features that allow up to six individuals to share limited access; however, when a family member is removed, access to what they have purchased is no longer available.[2]
What about the other digital movie providers?
Vudu by Fandango
Vudu by Fandango is another common provider. Vudu is known for providing early access, that is, offering users the opportunity to stream movies before they are released in theaters. Vudu also offers the opportunity to rent or buy movies. In general, most people think that language stating that something can be bought means a permanent transfer of ownership. However, Vudu’s terms[3] also contain some interesting provisions.
Some of Vudu’s content is marketed with terms such as “own,” “buy,” or “electronic sell through” (EST). In these instances, Vudu notes that access could last for a long time but not necessarily indefinitely. The accessibility of the content provided on an EST basis is subject to what the content’s owner actually allows. This means that if a content provider decides to withdraw the license, you could lose access to something you thought you had bought. Vudu encourages downloading content so you can have more access to your videos.
Vudu clearly articulates that the content can be “watched repeatedly on a streamed basis.” This content is also available to be downloaded to certain authorized devices. Vudu also states, however, that owners must “not sell, transfer, or assign [their] Account or any Account rights.” As with iTunes, there are limits on how these assets can be passed on to others. These terms do not specify the steps to take if one passes away, but the language restricting transfers suggests that you will probably be unable to pass your account rights on to loved ones at your death.
Disney+
Disney+ is another popular provider in the digital movies space. The terms of its subscriber agreement[4] explain that you are granted “a limited, personal use, non-transferable, non-assignable, revocable, non-exclusive and non-sublicensable right” to use and temporarily download the relevant content. Disney’s terms are also careful to note that the agreement provides a license and is not an actual sale or assignment of interest. Namely, “the purchase does not create an ownership interest” in the content. This is counterintuitive but common.
Movies Anywhere
Movies Anywhere allows you to access your videos from a variety of providers in one place. You are allowed to download eligible movies to a maximum of eight devices as long as they are allowed by the providers. But the terms of use[5] also state that you are receiving a license to use the product without actual transfer of ownership rights. That is, you receive
a limited, personal use, non-transferable, non-assignable, revocable, non-exclusive and non-sublicensable right to do the following:
- stream or download and install the movies, trailers, bonus materials, images, artwork and other copyrightable materials (the “Content”) that are available to you from the Movies Anywhere Service; and
- use the Movies Anywhere Service.
We Can Help
Across the board, when it comes to digital movies, the term “buying” does not necessarily mean what it used to mean. Downloading content may be the closest thing you have to transferring it. In such cases, the content is still not yours, but you can transfer your interest in the tangible devices, and most of the services do not have language in their terms mandating that you erase the downloaded content from the device.
As you consider your different types of digital assets, you must understand how those assets function and what your rights are in regard to them. Tracking down these details may be overwhelming, but you do not have to do it alone. Contact an experienced attorney who can help you properly identify and protect what you “buy.”
[1] Apple Media Services Terms and Conditions, Apple, https://www.apple.com/legal/internet-services/itunes/us/terms.html (Sept. 16, 2020).
[2] Id.
[3] Fandangonow and Vudu Policy, Fandango, https://www.fandango.com/policies/fandangonow-policy (Oct. 1, 2020).
[4] Disney+ and ESPN+ Subscriber Agreement, Disney Plus, https://www.disneyplus.com/legal/subscriber-agreement (Mar. 4, 2021).
[5] Movies Anywhere Terms of Use, Movies Anywhere, https://moviesanywhere.com/terms-of-use (Sept. 2, 2020).
