New Law Bans ISPs From Charging You A 'Rental' Fee For Hardware You Already Own

from the ill-communication dept

For much of this year, broadband customers have been complaining that Frontier Communications, the nation's third-biggest telco, had been charging its customers a rental fee for modems they already owned. Normally, you're supposed to be able to buy your own modem instead of paying your ISP a rental fee upwards of $10 per month. To nab some extra dough from captive customers, Frontier basically decided to charge its customers a rental fee anyway, giving them a polite, though giant, middle finger when they complained.

And because the FCC's net neutrality repeal effectively neutered the agency's ability to police this sort of behavior (not that the Pai FCC would anyway), consumers who complained to the agency were met with a glassy-eyed stare:

"Son filed a complaint with the Federal Communications Commission; Frontier responded to the complaint but stuck to its position that he has to pay the fee. A voicemail that Frontier left with Son and his wife said the company informed the FCC that "the router monthly charge is an applicable fee, and it will continue to be billed.

The FCC complaints team told Son in an email, "We reviewed the provider's response and based on the information submitted, we believe your provider has responded to your concerns." With FCC Chairman Ajit Pai having deregulated the broadband industry, there's little to no chance of the commission taking action to stop fees like the one charged by Frontier."

Fast forward to last month when the problem was fixed, shockingly enough, by the US Congress. A massive US government spending bill approved by Congress and signed by President Trump last month not only included some updates to the Communications Act cracking down slightly on bullshit cable TV fees, but a little noticed provision that formally bans the nonsense Frontier has been engaged in:

"A new "consumer right to accurate equipment charges" prohibits the companies from charging customers for "covered equipment provided by the consumer." Covered equipment is defined as "equipment (such as a router) employed on the premises of a person... to provide [TV service] or to provide fixed broadband Internet access service."

The companies may not charge rental or lease fees in cases when "the provider has not provided the equipment to the consumer; or the consumer has returned the equipment to the provider."

The new law is an update to the Communications Act and is scheduled to apply six months after passage, which would be June 20. The law gives the Federal Communications Commission an option to extend the deadline by six months if the FCC "finds that good cause exists for such an additional extension." As we've previously written, the FCC hasn't done much of anything to protect customers from bogus rental fees.

The telecom and media sector usually lobbies tooth and nail (usually successfully) to kill these kinds of protections, but the sheer size of the bill apparently let the provision sneak through. Granted the law only matters if somebody's willing to enforce it, and with an FTC and FCC that have repeatedly shown they're a rubber stamp for their BFFs in the telecom sector, that's not going to come easy.

Filed Under: broadband, congress, fcc, fees, isps, rentals

The Internet Remains Broken In The Ninth Circuit And, At Least For Now, The Third

from the third-state dept

Hopes that the Ninth Circuit would correct its earlier awful ruling against HomeAway and Airbnb were dashed recently when the court denied the petition for rehearing. We had supported that petition because the original decision read in an exception to Section 230's statutory protection that is not present in the statute, is out of step with prior precedent (including in the Ninth Circuit itself), and threatens the Internet economy. Unfortunately, now that rehearing has been denied, any platform that facilitates commercial speech, and whose revenue model depends on facilitating the transactions arising from commercial speech, will no longer be able to reliably depend on Section 230's protection, at least not in the Ninth Circuit.

It also remains vulnerable in the Third. The Oberdorf v. Amazon case allowed a products liability claim to proceed against Amazon based on Pennsylvania law. Subsequently, a district court in New Jersey – a state within the Third Circuit, for which the Oberdorf would be binding precedent – decided to allow a similar products liability claim to proceed against Amazon based on New Jersey law, finding that, under its relevant statute, Amazon is a "seller" for purposes of its products liability law.

All these decisions are troubling, and the New Jersey one pointedly illustrates why. Not only does this decision incorporate the same analytical defects as the previous decisions, but it also reflects how all the ignorance about and hostility toward Section 230 of late has been infecting the courts.

As we explained before, all these decisions look past these platforms' role as an enabler of other people's speech. In the case of Amazon, it is other people who say they have something to sell. Denying these platforms Section 230 protection for this sort of user speech means that few, if any, platforms will be able to remain available to facilitate similar commercial speech offering something to sell. Before cheering how this state of affairs might hobble Amazon, however, bear in mind that it will hobble ANY platform that offers independent merchants a chance to offer their goods to a wider audience - including platforms that might be able to compete with Amazon. The more distaste we have for large, incumbent market players, either as platforms or even direct merchants, the more this turn of events should alarm us, because it will ensure we remain stuck with the ones who are already well-capitalized enough to endure this liability minefield and prevent us from getting any new ones.

In most of these cases the courts tried to pretend that there is something different about Amazon's relationship with third party vendors that should put them on the hook for their liability. In this case, the New Jersey court didn't like that Amazon fulfilled orders, or otherwise reserved the right to exercise editorial control over the listings it hosted.

It is true that the agreements did not make Amazon the ultimate decisionmaker as to the prices or physical qualities of the product. As to the sale process, however, the level of control was greater. For example, Amazon processed all payments. [The seller] was required to provide information about its product in the manner that Amazon prescribed. Amazon exercised control over the listing itself—in particular, it retained the right to change, suspend, prohibit or remove listings. If notified that a product was defective, Amazon had the power to take it off the shelf, i.e., to remove the website listing and thereby shield innocent consumers. Under the EBA program, Amazon even had the right to dispose of products that were defective. Compare Oberdorf in which the vendor did not use Amazon’s fulfillment services, so Amazon never physically possessed or shipped the product. Not so here. The vendor in our case signed the FBA and used the fulfillment services, so Amazon physically took custody of, packaged, and shipped the scooter which injured the plaintiff. [p. 26]

The above paragraph shows how a significant problem with this decision is how the court seriously overestimates just what sort of "control" Amazon actually has over the products sold through it. In reality there is no practical way for Amazon to police all the listings for all goods that all its users try to sell. The court confused Amazon's efforts to contractually reserve the right to try to police the listings anyway, which is exactly the sort of policing that Section 230 tries to encourage, with the actual ability to police each and every listing, which is functionally impossible. Just as Amazon could not possibly police all of its user reviews, and Section 230 exists to relieve them from the burden of this impossible task by shielding them from liability arising from these reviews, it could not possibly police all of its listings either, and so Section 230 should similarly insulate them from liability from this form of user expression too. Courts have been wrong to deny them this statutory protection, and especially so when this denial has been based on the unfounded and erroneous assumption that all this policing was something a platform could actually do.

Meanwhile, the fact that these decisions each quibble over the definition of "seller" under each individual state's law, on their way to deciding whether transactional platforms like Amazon should be liable for problems with their users' content, is itself further evidence that this sort of judicial inquiry should have been barred by the statute entirely. One of Section 230's most important provisions is its preemption provision, which forbids any state or locality from mucking about with its local law in a way that interferes with the reliable protection Section 230 is supposed to provide any online service provider, whose services are inherently available across the nation. It's easy to understand that this provision means that states can't change their definition of "defamation" in order to make a platform become liable for user content. But courts seem to be struggling to recognize that this provision should apply to any other state that would seek to make a platform liable for something wrong in their users' content (in this case the offer to sell a defective product). Allowing platforms' liability to hinge on the specific drafting of these state laws turns Section 230's protection into something inconsistent and provincial, instead of predictable and therefore useful, as Congress had intended.

The New Jersey decision did not blaze new ground here, however; it ended up being fairly consistent with the Oberdorf decision that preceded it. But it is notable for its candid hostility toward, and, dare I say, ignorance about, Section 230. In particular, in a chilling footnote, it dismissed Professor Jeff Kosseff's well-researched book, "The Twenty-Six Words That Created the Internet," and instead cited one of the completely fictional diatribes recently published in the New York Times as one of its sources underpinning its erroneous belief in the limits of Section 230.

I am not oblivious to the context or the stakes here. It has been said that the “twenty-six words” of Section 230 of the CDA, enacted in 1996, made e-commerce itself economically feasible by permitting platforms such as Amazon.com to match sellers with buyers without taking on the seller’s liabilities. See, e.g., J. KOSSEFF, The Twenty-six Words that Created the Internet, Cornell University Press (2019). It would perhaps be more sober and accurate to say that the twenty-six words of Section 230 promoted or facilitated important aspects of the internet as we now know it. A recent New York Times article, to pick an example almost at random, is a useful backgrounder on Section 230’s evolution as a tool for promotion of e-commerce (whether sly or serendipitous depends on your point of view). https://nvw.nytimes.com/2019/08/06/technology/section-230-hate-speech.html The article notes that political leaders as ideologically diverse as House Speaker Nancy Pelosi (D-CaI) and Senator Ted Cruz (R-Tex) have publicly criticized Section 230 as a giveaway to the tech industry, and have raised the possibility of reform or abolition. [fn. 18]

The court does go on to say that it was only crediting the animus against Section 230 insofar as it applied to e-commerce.

These e-commerce issues are to be distinguished. however, from others that are driving the current debate, such as Section 230’s grant of immunity for speech-based harms such as hate speech or libel. Id.; see also Reno v. ACLU, 521 U.S. 844 (1997). [id.]

But this clarification is hardly reassuring. Not only does it ignore that commercial speech is inseparable from any other sorts of expression Section 230 reaches, but if the court was in any way relying upon this ignorant media coverage, which almost universally misunderstand the purpose, value, and mechanics of the statute, then no wonder it felt comfortable ignoring them itself in gutting this critical statutory protection.

Fortunately, the one bit of tentative good news is that, unlike the Ninth Circuit, the Third Circuit has now granted rehearing of its Oberdorf decision. And, as a result, the district court in New Jersey has stayed the effect of its own decision, pending that reconsideration. Hopefully on further review the Third Circuit will be able to recognize how Section 230 is supposed to apply to even these transactional platforms, and the importance of not interfering with this operation.

Filed Under: 3rd circuit, 9th circuit, housing, rentals, section 230, transactions
Companies: airbnb, amazon

The Death Of Ownership: Educational Publishing Giant Pearson To Do Away With Print Textbooks (That Can Be Resold)

from the you-don't-own-anything dept

It sometimes is difficult to get people to understand just how >utterly insane the college textbook market is. You have a captive audience who has no choice but to purchase what the professor requires (which is why it's doubly lame when professors require their own books). But even people who went to college a few decades ago may not be aware of just how much textbook prices have kept rising. A study from 2015 showed that college textbook prices had risen over 1000% since 1977. 1,000%.

Another BLS study from 2016 showed that, in the education space, the price of textbooks had gone up even faster than the cost of tuition (which is also skyrocketing).

In short: college textbooks are crazy, crazy expensive. And one way that people have dealt with this over the years is (1) by buying used textbooks, or (2) by selling back the textbooks at the end of the semester (or in some cases, both). However, that's the one factor that's acted as competition to the textbook market.

And the publishers want to do away with it.

The largest educational textbook publisher, Pearson, has now announced that it's going to phase out print textbooks and move solely to electronic textbooks. If you actually want a physical textbook, you'll only be able to "rent" it:

Pearson said students would only be able to rent physical textbooks from now on, and they would be updated much less frequently.

The British firm hopes the move will make more students buy its e-textbooks which are updated continually.

There's an argument that ebooks have certain advantages -- and can be updated much more quickly. Also carrying around a ton of textbooks can be a pain. But, we're once again left in a world where the concept of "ownership" is left open. I still have a bunch of college textbooks that I sometimes even refer back to. But under this system, if you stop paying your "subscription" fees, those can go away.

And, yes, there's value in embracing a more digital future -- but it's difficult to believe that Pearson is truly doing this to improve the value for students, rather than just upending the older market order, and taking away the ability for people to own and to resell textbooks.

Filed Under: captive markets, copyright, monopoly pricing, ownership, rentals, subscriptions, textbooks
Companies: pearson

German City Wants Names And Addresses Of Airbnb Hosts; Chinese Province Demands Full Details Of Every Guest Too

from the sharing,-but-not-like-that dept

Online services like Airbnb and Uber like to style themselves as part of the "sharing economy". In truth, they are just new twists on the rental sector, taking advantage of the Internet's widespread availability to broaden participation and ease negotiation. This has led to a tension between the online services and traditional local regulators, something Techdirt noted in the US, back in 2016. Similar battles are still being fought around the world. Here's what is happening in Germany, as reported by Out-Law.com:

The City of Munich asked Airbnb to provide it with all advertisements for rooms in the city which exceeded the permissible maximum lease period [of eight weeks in a calendar year]. Specifically, for the period from January 2017 to July 2018, it wanted Airbnb to disclose the addresses of the apartments offered as well as the names and addresses of the hosts.

Airbnb challenged the request before the administrative court in Munich, which has just ruled that the US company must comply with German laws, even though its European office is based in Ireland. It said that the request was lawful, and did not conflict with the EU's privacy regulations. Finally, it ruled that the City of Munich's threat to impose a €300,000 fine on Airbnb if it did not comply with its information request was also perfectly OK. Presumably Airbnb will appeal against the decision, but if it is confirmed it could encourage other cities in Germany to make similar requests. At least things there aren't as bad as in China. According to a post from TechNode:

The eastern Chinese province of Zhejiang will require online home-sharing platforms, including Airbnb, to report owner and guest information to the province's Public Security Department. The platforms will need to check, register, and report the identity of both parties, including the time the guest plans to arrive and leave the property.

That information provides a very handy way of keeping tabs on people travelling around the province who stay in Airbnb properties and the like. It's yet another example of how the Chinese authorities are forcing digital services to help keep an eye on every aspect of citizens' lives.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: china, germany, home rentals, home sharing, privacy, rentals
Companies: airbnb

Disney Fixes Its Sketchy DVD Rental License, Wins Injunction Against Redbox Over Digital Downloads

from the copyright-as-blocking-innovation dept

Earlier this year we wrote about Disney's silly lawsuit against Redbox. If you don't recall, Redbox, whose main business was renting DVDs out of kiosks started also offering digital download codes that could be purchased at their kiosks. What Redbox did, was it would buy Disney "combo packs" (that came with both a DVD and a download code) and would offer up just the slip of paper with the code out of its kiosks. This seems like perfectly reasonable first sale rights. A legitimate code was purchased, and then resold.

When we wrote about the case back in February, it involved the court smacking down Disney, and even saying that the company was engaged in "copyright misuse" in overclaiming what copyright allowed the company to do. Later in that ruling, the court also rejected Disney's claim that Redbox was in breach of a contract by saying that the text Disney prints on the box (at the time: "codes are not for sale or transfer") was not actually a contract. Of course, as we noted at the time, the court's language made it clear that slightly different language could fix this. From the ruling:

The phrase “Codes are not for sale or transfer” cannot constitute a shrink wrap contract because, like the box at issue in Norcia, Disney’s Combo Pack box makes no suggestion that opening the box constitutes acceptance of any further license restrictions.... Although Disney seeks to analogize its Combo Pack packaging and language to the packaging and terms in Lexmark, the comparison is inapt. The thorough boxtop license language in Lexmark not only provided consumers with specific notice of the existence of a license and explicitly stated that opening the package would constitute acceptance, but also set forth the full terms of the agreement, including the nature of the consideration provided, and described a post-purchase mechanism for rejecting the license. Here, in contrast, Disney relies solely upon the phrase “Codes are not for sale or transfer” to carry all of that weight. Unlike the box-top language in Lexmark, Disney’s phrase does not identify the existence of a license offer in the first instance, let alone identify the nature of any consideration, specify any means of acceptance, or indicate that the consumer’s decision to open the box will constitute assent. In the absence of any such indications that an offer was being made, Redbox’s silence cannot reasonably be interpreted as assent to a restrictive license.

So my prediction following that was: "this almost certainly means that Disney is quickly reprinting the packaging on all its Combo Pack DVDs to make this language more legalistic to match the Lexmark standard."

And... bingo. That's exactly what happened. In a new ruling, the court has now granted a preliminary injunction against Redbox all because of the new "contract" language Disney has put on its DVDs (though amusingly, in a footnote, the court notes "Disney does not concede that the changes were necessary.")

Disney subsequently changed the language on its Combo Pack boxes, changed the download sites’ Terms of Use, and amended its Complaint. Disney’s Combo Pack packaging for the movie Black Panther is the first to reflect changes implemented after this Court’s denial of Disney’s first motion for a preliminary injunction. The front of Black Panther Combo Pack boxes indicates that the Combo Packs include a “Digital Code.” The back of the boxes state, in some of the largest print displayed, “Digital Code Included*[.]” The asterisk directs the reader to a discrete text box at the bottom of the package, which states, in smaller, allcapitalized text, “Digital code redemption requires prior acceptance of licence terms and conditions. Codes only for personal use by recipient of this combination package or family member. Digital movie code . . . subject to expiration after May 15, 2023.” Smaller type in a more central, fine print-type section of the packaging reads, “The digital code contained in this package may not be sold separately and may be redeemed only by the recipient of this combination package or a family member. Visit MoviesAnywhere.com, RedeemDigitalMovie.com, and disneytermsofuse.com for code redemption and other applicable terms and conditions.” The paper Code insert within the Combo Pack contains a similar statement and also reads, “This digital code is part of a combination package and may not be sold separately,” and “Digital code redemption is subject to prior acceptance of license terms and conditions.”

It actually goes on from there. Basically, in response to the earlier ruling, Disney slapped legal warnings and language basically everywhere possible. Some of us would suggest that this -- again -- represents clear copyright abuse, trying to use copyright in restraint of first sale, but the court notes that under the Lexmark standard, it's all groovy. The court does still seem a bit perturbed at Disney's actions, and has a somewhat fascinating discussion on the differences between shrinkwrap, clickwrap, and other types of agreements (while arguing that Disney is arguing things that are not accurate about what constitutes a contract), but does conclude that with Disney pasting legalese everywhere, Redbox is on notice:

At this stage, the court need not make a determination whether Combo Pack purchasers enter into a shrinkwrap, clickwrap, or other type of agreement, nor precisely delineate the terms of any such agreement. It appears from the record currently before the court that neither Redbox nor any other Combo Pack purchaser could (or did) reasonably believe that, notwithstanding the Black Panther licensing language on the box itself, the Combo Pack included unrestricted ownership rights to any digital content.... Because Redbox did not obtain an ownership right to any digital content when it purchased Combo Packs, Disney has adequately shown that it is likely to succeed on its claim that Redbox encouraged Redbox customers to infringe Disney’s copyrights by redeeming Codes in violation of the license terms set forth on the redemption sites.

As in the earlier ruling, the court is not impressed by Redbox's First Sale argument, noting that it was basically killed off due to the awful ReDigi ruling that killed off reselling MP3s.

This is, of course, silly. Everyone recognizes that Redbox has every right to buy physical DVDs and then resell them. In what world does it make sense that it can't also buy up a piece of paper with a download code and resell that as well? Apparently, the one we live in. I've seen some copyright extremists online cheering on this ruling, which is not surprising, but ridiculous. Cheering on a ruling like this is cheering on monopolistic practices that limit innovation and the spread of culture.

Filed Under: clickwrap, contracts, copyright, downloads, dvd rentals, first sale, licenses, movies, rentals, shrinkwrap
Companies: disney, redbox

NY's Attorney General Demands All Data On NYC AirBNB Rentals

from the chilling-effects dept

What is it with states attorneys general and their attacks on innovation? The latest news is that NY's AG, Eric Schneiderman, is demanding data from AirBnB on all 15,000 users in NYC who have rented out their place. This comes after a ruling back in May saying that an apartment owner renting out his place was guilty of running an illegal hotel (that was just overturned). Of course, the very day that original ruling happened, I'd been trying to rent a place in NYC on AirBnB -- and I even had a guy who had agreed to rent me the place pull back, saying that because of the legal issues he was removing his apartment from the site. I'm about to go to NYC again, and have another AirBnB place lined up -- but am now nervous that this one, too, will disappear.

The NY AG's office claims that they're only going after a small number of "bad" AirBnB users, mainly "landlords doing long-term illegal rentals," but if that's the case, why does it need information on 15,000 users. If anything, that's going to create massive chilling effects. Services like AirBnB provide tremendous amount of value on both sides of the equation -- homeowners are able to make extra cash (sometimes significant amounts) while travelers are able to rent out nice places at lower rates than hotels. It's a good deal that's pretty efficient across the board. The NY AG's office claims that this leaves out neighbors who may be impacted, but it seems like there are much better ways to deal with neighbor problems than having to go trolling through all of AirBnB's records.

Filed Under: attorney general, eric schneiderman, landlords, ny, nyc, rentals
Companies: airbnb

Warner Brothers And Redbox Sign New Deal: Rental Blackout Window Cut From Ridiculous 56 Days To Equally Ridiculous 28 Days

from the 'half-as-stupid'-isn't-the-same-as-'twice-as-smart' dept

Redbox has ended its "standoff" with Warner Brothers and, despite its earlier moves, has come out on the losing end of the deal. If you'll recall, earlier in the year Redbox decided to let its contract with Warner Brothers expire after the studio decided to withhold its new releases for 56 days -- up from the already ridiculous 28 days. Redbox looked at the obscene size of this window and said, thanks but no thanks, we'll just purchase your movies elsewhere.

This couldn't have made WB too happy, what with Redbox exercising the right of First Sale to bypass the studio's window and let itself in the front door. As for those looking to rent new releases while they were still new, Warner Brothers basically told them to shove off, and go look elsewhere for their entertainment. Having cut off a source of income and given more than a few potential customers a reason to check out alternate sources, the studio finally decided to renegotiate.

Here's how it all works out for Redbox (and by extension, the customers):

For titles with street dates between January 1, 2013 and December 31, 2014, the studio will grant Redbox the rights to offer Warner Bros. theatrical titles on Blu-ray Disc and DVD 28 days after their retail release dates.

Apparently, a stupid window is slightly less stupid when it's half the size it previously was. (But more stupidly, it's exactly where the window sat previously, before Warner decided not enough people were buying during the rental shutout). What Warner refuses to understand is that people want to rent movies when they logically should be available (i.e., day and date with the DVD release), rather than at some arbitrary point in the future. Warner is still willing to trade rentals for sales, even if it means giving up some rentals for file sharing. But the stupidity of the deal gets worse:

In addition, Redbox announced plans to join the Digital Entertainment Content Ecosystem (DECE) and has agreed to promote UltraViolet through a program of mutually agreed-upon promotions and marketing tactics designed to help retail customers discover UltraViolet.

On top of being forced to humor Warner's ignorant windowing, Redbox is now being made to play nice with the studio's too-little-too-late digital "offering." It's a bad deal all around, but the press release ignores all reality to paint a gloriously rose-tinted future for all involved.

The arrangement will improve the economics for both Warner Bros. and Redbox while ensuring consistent availability of Warner Bros. titles for the consumer.

Really? Judging from past experience, it seems more likely that Warner will continue to cripple the rental service by adding ridiculous agreements and stipulations while slowly killing off the everything anyone liked about it. There's nothing about this equation that "improves economics." Warner opens itself up to more piracy by setting up arbitrary windows and consumers looking for the latest Warner releases still have 28 days to kill before they become "consistently available."

Here's some more rah-rah, go team doublespeak from Warner Bros.

"We are pleased to once again have a direct relationship with Redbox, providing their consumers access to our movies," said Ron Sanders, president, Warner Home Video. "In addition, we look forward to working together on other key initiatives such as UltraViolet and creating promotional opportunities to offer consumers great content when and where they want it."

Translation: We are pleased that we have prevented Redbox from simply purchasing our movies from a third party and renting them out during our arbitrary blackout periods. In addition, we look forward to pushing our clunky digital services and creating restrictive "opportunities" to offer consumers great content when and where we say they can have it.

Filed Under: movies, rentals, windows
Companies: redbox, warner bros.

Studio To Amazon Instant Video Customer: Thanks For The $$$. Enjoy Your Blank Screen.

from the watched-any-good-LICENSES-lately? dept

The best way to combat piracy is to offer content at a reasonable price, make it easily accessible and hamper it with as few limitations as possible. Very, very slowly, the major studios are coming around to this line of thinking. A few tentative (and pretty much awful) steps have been taken, but it seems that for every minute, baby step forward, the motion picture industry staggers several steps back.

Case in point: Amazon's Instant Video service, which has "over 100,000 top movies and TV shows to rent or buy." This includes many new releases, and the purchaser can stream the movie indefinitely and at any time to compatible devices. The purchaser also has the option to download the movie to a PC or Kindle Fire for viewing without an internet connection.

It all sounds like a pretty good deal, until you realize that the words "indefinitely" and "any time" mean something completely different to the studios.

Consumerist reader Rebecca found this out the hard way, when she purchased Puss In Boots for $14.99 from Amazon, believing that, per Amazon’s marketing, she would be able to watch the movie when she wanted and for as many times as she wanted.

And all was going well for a few weeks until Rebecca went to stream Puss In Boots and instead saw a message stating that the film was no longer available for viewing.

As Rebecca found out, "any time" means "any time the studio is not currently milking every last dollar out of its latest release by shuffling it in and out of rental, PPV and premium cable windows." Why these windows should matter to someone who has already paid for the movie is beyond me. After all, the purchaser should be able to set his or her own "window," starting from the point they paid for the movie and going forward.

Amazon's marketing seems to agree with this customer-friendly "any time window." But once something like this happens, the real details come out. Rebecca contacted Amazon for some clarification on this bullshit "anomaly" and received this:

Due to licensing restrictions, videos can become temporarily unavailable for viewing or downloading. The video will automatically be made available again once that restriction ends.

Availability of videos for purchase, re-download, or access from a backup copy is determined by the owners of the content. On very rare occasions, a video you previously purchased may become unavailable.

Well, that's kind of crap. The video you "previously purchased" may become "unavailable" at the whims of "THE OWNERS OF THE CONTENT." No doubt wrinkles of incomprehension form on the brows of studio and label execs when customers make bizarre claims of "ownership" after purchasing movies and music. According to the execs, they only "licensed" the content to you (with all the billions of lousy stipulations that transaction entails). [Unless you're Eminem and demanding to be paid larger "license" royalties. In this specific case, you were sold actual songs.]

While this studio chicanery is nothing new, especially when it comes to digital goods, Amazon isn't helping matters by burying the exceptions and limitations that come with purchasing "indefinite" access. The licensing restrictions Rebecca had detailed for her by Amazon appear nowhere on the purchase pages. In fact, the "Amazon Instant Video Usage Rules" page carries none of this information either. Instead, it gives you this phrase and link:

Viewing Period: Indefinite — you may watch and re-watch your purchased videos as often as you want and as long as you want (subject to the limitations described in the Amazon Instant Video Terms of Use).

The TOS link brings you to a less-than-helpful wall of text, leaving the purchaser to scroll up and down before finding the pertinent information that explains exactly why something they purchased is unavailable.

Purchased Digital Content will generally continue to be available to you for download or streaming from the Service, as applicable, but may become unavailable due to potential content provider licensing restrictions and for other reasons, and Amazon will not be liable to you if Purchased Digital Content becomes unavailable for further download or streaming. You may download and store your own copy of Purchased Digital Content on a Compatible Device authorized for such download so that you can view that Purchased Digital Content if it becomes unavailable for further download or streaming from the Service.

Nice, huh? For any reason, your purchase may be limited, unavailable or removed completely by the "content provider." Amazon suggests (when it's done letting you know that "hey, not our fault") that the purchaser download and store their own copies to avoid being locked out of their purchases by the content providers. Well, thanks for the suggestion, Amazon, but even that half-assed "workaround" is useless thanks to the fact that the content provider can also make purchases "unavailable for further download." It's not as if Dreamworks is going to send an email blast letting customers know that their purchased streams are about to vanish thanks to a six-week run on pay-per-view. And the studios certainly aren't going to tell customers "Download now because we're yanking that movie from Amazon completely." Everyone involved would just rather the problem be dealt with when the angry emails start pouring in, if at all.

Now, Rebecca obviously prefers streaming, so getting shafted by the studios probably isn't going to drive her to massive torrenting. What it may do, however, is send her towards streaming services like Amazon Prime or Netflix. Because of its shortsighted urge to drain every last penny out of "Puss in Boots," Dreamworks seems willing to sacrifice actual "digital dollars" from Amazon Instant Video for the "digital dimes" of other streaming services. Of course, if the studio already has your $14.99, it's probably not very concerned about how satisfied you are with the spotty availability of your purchased movie license. It's not like Rebecca can return it. All she can do is wait for Dreamworks to reopen her (prepaid) window.

Streaming is becoming the preferred option for movies and music and Hollywood seems to be willing to fight it every step of the way. It's sad and it's ugly. The industry has crippled Hulu and Netflix (while offering nothing comparable of their own) and now seems ready and willing to kick Amazon and its customers around for as long as it can get away with it. It's one thing to play stupid games with content when customers are playing a flat rate for "all you can watch." It's quite another to yank content away from customers who have paid directly for a title at prices that rival a physical DVD purchase. That's not a "business model." That's abusing your customers for fun and profit.

Filed Under: digital content, movies, purchases, rentals, restrictions
Companies: amazon

Redbox Won't Cave To Warner Bros. Demands; Will Buy WB DVDs From Other Sources And Rent Them

from the good-for-redbox dept

With all the talk of movie studios trying to create a new window between DVD releases for sales, and DVD releases for rentals, it's sometimes forgotten that Redbox tried to fight this fight a few years ago... and ended up in a big legal battle with the studios, before caving and agreeing to delay rentals. However, it appears that the company may be ready to fight back again. Rather than accept an increased 56 day window with other annoying restrictions, Redbox is apparently telling Warner Bros. to take its dumb idea and to shove it, because it'll just buy the DVDs from alternative sources:

However, after lengthy talks between WB and Redbox this month, the companies couldn't come to an agreement over the new demands from the studio.

Instead, Redbox has opted to turn to "alternate means" to purchase the films on DVD and Blu-ray it makes available to rent for as low as $1.20 a night through its more than 28,000 kiosks -- and offer them the same day they hit store shelves to buy, according to Redbox senior VP of marketing Gary Cohen.

This could get interesting, because the last time they had this fight, the studios sought to block companies like Walmart from selling to Redbox, and Walmart put in place some restrictions to make it harder for Redbox to do this. I still think Redbox could potentially crowdsource these purchases, and get around any restrictions.

Either way, it's stories like this that show why the First Sale doctrine is so important. Redbox should be able to buy from alternative sources and then be free to rent those movies. And that's the case due to "first sale" rights -- even if Warner Brothers wants to pretend they don't exist.

Filed Under: copyright, first sale, movies, rentals
Companies: netflix, redbox, warner bros.

Warner Bros. Wants You To 'Buy' Movies Instead Of Rent... And By 'Buy' It Means Spend More To Still 'Rent'

from the that's-not-buying dept

We pointed out that the early reviews of Hollywood's new UltraViolet DRM aren't particularly good, but the industry is still pushing forward with the idea. Leading the way is Warner Bros., who is trying to turn the movie-based "social network" it bought a few months ago, Flixster, into the central hub for your movies. The NY Times has an article about it, where it repeatedly claims that the strategy is all about trying to get people to "buy" movies again, rather than just rent them via Netflix of Redbox. Of course, I find this pretty funny, because nothing about UltraViolet is about actually "buying" anything. You're still renting -- and if things ever went to court over, say, your first sale rights to resell a movie you "purchased" using UltraViolet, you can bet that Warner Bros. would be first in line to claim that the license shows you're merely renting the movie, and not buying it. It's just that you're renting it on an open-ended timeline, basically until the studios bail on UltraViolet and shut down the servers.

Rob Pegoraro, in commenting on the article, notes that oddly, the article doesn't even mention DRM in talking about why people don't want to buy from the studios or the fact that it's still much more convenient to get the content by unauthorized means. But that concept still hasn't reached the brain trust at Warner Bros., who seems to insist that as long as you can access the movies you "bought" from anywhere, people will prefer that to file sharing. While it's great that they're at least trying to add benefits, to make it more valuable and worth paying for, the whole thing smacks of someone's father trying to "act cool" for his kids' friends. Warner Bros. still doesn't seem to understand why people like things like Netflix: the convenience. Everything about Ultraviolet sounds inconvenient, and that hardly makes anyone want to "buy."

Filed Under: copyright, dvds, flixster, licenses, movies, purchases, rentals, ultraviolet
Companies: flixster, warner bros.