You clicked buy, but don't own it? E-commerce law has to change
Dean Dunham says that consumer law needs to keep pace with a changing retail landscape
Imagine walking into a shop, buying a DVD, taking it home and then, three years later, the retailer knocking on your door and taking it back because its licensing agreement with the film studio had ended.
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You’d rightly think that was absurd.
Yet in the digital world, something remarkably similar can happen.
From 1 September, PlayStation customers in the UK lost access to 551 StudioCanal films and programmes they had previously paid for, following the expiry of licensing arrangements.
And that exposes a much bigger consumer issue.
What does the word “buy” actually mean anymore?
When most consumers see a button saying BUY, they reasonably assume they’re purchasing something that will then belong to them.
But with digital content, the reality can be very different.
You may actually be acquiring a licence to access that content, subject to terms and conditions and licensing arrangements that could ultimately mean it disappears from your library. Legally, those distinctions matter.
But here’s my problem: consumers don’t shop like lawyers.
They don’t stand at the virtual checkout analysing intellectual property rights and licensing agreements. They see the word BUY, pay their money and understandably believe they’ve bought something.
If what you’re really selling is a potentially temporary licence, say so.
Put “LICENCE THIS FILM” on the button.
Or tell consumers prominently (a requirement under the Consumer Rights Act) before payment: “You are not buying permanent ownership and this content may subsequently become unavailable.”
What shouldn’t happen is for the comforting language of ownership to be used at the point where the consumer hands over their money, while the limitations on that ownership are buried elsewhere.
And this issue is only going to become bigger.
Films, music, games, books and software are increasingly digital. We’re moving from shelves full of things we physically own to online libraries containing things we may only have permission to access.
Consumer law needs to keep pace with that change.
I’m not arguing that every digital purchase must give somebody ownership forever. Licensing and intellectual property rights make that unrealistic.
I’m arguing for something much simpler. Tell consumers what they’re actually buying, a basic consumer right.
Because if I pay for something labelled BUY, only to discover you can later take it away from me, I didn’t really buy it at all.
And perhaps it’s time we stopped pretending that I did.
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Dean Dunham KC presents LBC's legal hour every Sunday from 9pm-10pm.
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