Huntsviile Tribune
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Everything from your fridge to your tractor can change without your permission.

Several months ago, as we began mentally preparing to move apartments, my girlfriend nodded toward two gray linen boxes that had long sat untouched at the base of our TV stand. “What’s in those?” she asked. I told her they held my DVDs. “When have you ever watched those?” she asked, rhetorical and correct. She wanted to know if, in the name of optimizing space in our next home, we could dump both the boxes and their contents.

It was a reasonable ask. I couldn’t remember the last time I had even thought about my DVDs; if quizzed on the boxes’ inventories, I might have struggled for a passing grade. Whatever was in there could surely be streamed via some subscription service we already held or else replaced with a digital purchase, and in either case could be flexibly enjoyed on more devices than just the living room TV connected to my Xbox One.

Still, something more than nostalgia made me balk. Streaming requires continued payments to rent access to a library prone to changes beyond my control. Digital purchases come with byzantine restrictions and often rely on that platform’s continued existence and a sustained, quality internet connection. Relying even more heavily on these models felt like a further concession to the powers that already wield such outsize influence over our 21st-century lives, not only through streaming and digital goods but increasingly through the internet-embedded everything around us. There was something comfortingly self-sufficient about the idea that, in theory, the only thing stopping me from watching Pee-wee’s Big Adventure for free whenever I damn well pleased was an act of God, or at least a power outage. And there was something uncomfortable about sacrificing that — about letting yet another aspect of life slip fully into the intangible digital ether.

Still, this miniature act of bulwarking aside, I am among the many Americans who habitually convert their property into digital forms. According to CNBC, US DVD sales declined by 86 percent between 2006 and 2019, while comparatively modest Blu-ray revenues have fallen some 24 percent since their 2013 peak. At the same time, three-quarters of American households subscribe to at least one video streaming service, whose revenues now dominate the home market.

Similar trends exist in other media: Digital music sales surpassed physical ones in 2011, only for streaming to overtake digital purchases five years later; last year, digital video game sales outpaced their physical counterpart, while subscription models continue to grow in popularity. With the advent of NFTs, the art and collectibles markets are now exploding in goods’ most aggressively impalpable form yet.

These dual trends — the rise of purchased and subscription-based non-physical media — are driven by the benefits such consumption provides, chiefly convenience. Digital and streaming media generally offer minimal effort to access and strong portability without physical degradation or the constraints imposed by taking up physical space (say, in a box on a TV stand). But such benefits do impose costs, like streaming’s aforementioned unending billing cycles and lack of library control, or the limits a digital purchaser faces when trying to lend or resell their wares. In fact, as some digital consumers have found out firsthand, they may suddenly no longer have their purchases at all.

On a larger scale, these trends are transforming the way we relate to our possessions, and thus to ourselves and the world around us. “I am what I have,” Jean-Paul Sartre wrote in his essential existentialist text Being and Nothingness in 1949. Four decades later, York University professor Russell W. Belk coined the term “extended self” to describe how humans incorporate their belongings into their self-conception. “The greater the control we exercise,” Belk wrote, “the more closely allied with self the object should become.” They may also help place us within space and time, reflecting our past (a souvenir from a long-ago vacation) and our planned future (the new yoga mat meant to inspire routine practice). Thanks to what is known as the endowment effect, we tend to value these objects in our possession over their equivalents.

“When we own something, it becomes us,” Belk tells Vox. “We’ve imprinted on it.” He mentions, as examples, the notes made in margins of books or the dings and dents objects gain through use. “In that sense we’re not only saying that it’s ours, we’re making it uniquely ours,” he adds, “rather than a generic, fungible object that could be replaced by another.”

Now such relationships are being disrupted. For one, with streaming and other internet-based media consumption, you never even theoretically have anything. But even when music or a movie or book or art NFT is purchased digitally, it never holds a physical presence in its owner’s life; one imagines it is quite common for, say, a modern music fan to spend a good chunk of money to stream or download their favorite artists’ work and yet never have anything in their homes indicating as much. The media is then reduced to its intangible, ephemeral consumption, rather than doubling as a real-world object accumulating what anthropologist Igor Kopytoff would have called its “cultural biography.” (Imagine, as illustration, the difference in feeling between inheriting a grandparent’s books and their ebooks.)

That lack of physical presence can also make it harder for an object to create what Sabrina V. Helm, a consumer science professor at the University of Arizona, calls “a sense of belonging,” as they do not offer an outward communication of their owner’s tastes and identity. Helm suggests in an interview that media’s intangible state can even compromise our experience of them, as myriad works are accessed through the same device and presented in a uniform manner without the unique external indicators (like book covers or varying paper textures) that can help create memory traces. As a result, our connections to such works may be weakened. “In our mind, they don’t have that space,” she says.

In a recent study Helm led, some readers — particularly Harry Potter enthusiasts — said they kept two copies of their favorite books, one digital and one tangible. “The digital copy is what you read,” Helm says, paraphrasing respondents’ rationale. “The other is what you have. So there is very clearly a distinct value.”

In her classes, Helm likes to ask students what they consider their most prized possession. Reliably, many nominate their smartphones. But as Helm points out, those students will soon excitedly replace those phones with a newer model, discarding their supposedly beloved one like a stained and moth-eaten sweater. “You don’t care for the actual product itself,” Helm says. “You care for the value that it provides to you.”

This dynamic hints at another shift: Even our most solid, real-world possessions are increasingly inseparable from the intangible and ephemeral digital world. Which means that as much as our relationship to digital possessions may be evolving, so is our relationship to tangible ones — and it’s not a relationship in which the consumer holds much power.

Imagine you’re a farmer. You spend hundreds of thousands of dollars on a fancy new tractor that is critical to your livelihood. Embedded in the tractor is a specialized computer system that plays a role in just about everything the tractor does. Eventually, as with most machinery, something in the tractor goes awry and requires fixing. It’s then that you might learn, as a number of John Deere customers have in recent years, that your ultra-modern vehicle comes with a far-reaching catch: Because its central software is the intellectual property of its manufacturer, said manufacturer may claim that you do not actually own your tractor outright.

Because John Deere owns the central software, only John Deere and its approved agents can repair any part connected to it, which is to say every part. Your choice is either to take your tractor to an approved shop, often at great inconvenience and personal expense, or to essentially hack it — a violation of John Deere’s mandatory licensing agreement, punishable by the company revoking your license for use. In one of society’s oldest property arrangements, that between a farmer and their equipment, the supposed owner would have the same limited user rights as the purchaser of an ebook or digital movie.

These problems share a legal history. Traditionally, in US law, the so-called “first-sale doctrine” (also known as exhaustion) limits sellers’ ability to control what a customer does with their copy of a copyrighted work after purchase (e.g., reselling a book). But with the advent of intangible goods like software, which could be copied identically from a purchased version, rights holders grew concerned over a single sale’s potential widespread duplication. Courts struggled to apply the laws concerning traditional property to goods that did not exist in physical space. As Washington and Lee University law professor Joshua A.T. Fairfield writes in his book Owned: Property, Privacy, and the New Digital Serfdom, intellectual property law filled the void.

A crucial decision came in 1993 when the Ninth Circuit of the US Court of Appeals ruled in MAI Systems Corp. v. Peak Computer Inc. that the local, impermanent copy of an operating system that is loaded into a computer’s RAM upon its booting up — a necessary component of a computer’s operation — is, by virtue of making a copy of intellectual property (the operating system), subject to copyright law. This “deeply stupid ruling,” Fairfield tells Vox, laid a trap, making the use of any software (broadly meaning nearly anything used on a computer system) a copyright violation unless the user followed rules set unilaterally by the manufacturer and/or seller. “That was the case that handed the keys to the kingdom to these companies,” Fairfield says.

These legal principles have carried over to the so-called Internet of Things, in which tangible objects are embedded with copyrighted software (a.k.a. smart devices, like smart refrigerators and televisions and cars). As discovered by those John Deere customers, even wholly purchased real-world objects are subject to user agreements imposed by the seller. Here Fairfield cites the tech principle known as Doctorow’s First Law: “Anytime someone puts a lock on something that belongs to you, and won’t give you a key, they’re not doing it for your benefit.”

In Fairfield’s writing, four rights of traditional ownership are lost in this shift to a license-based system. One is a “right to ban,” or to exclude others from your property, as Kindle owners could not keep Amazon from removing their copies of 1984, nor could We-Vibe sex toy owners block the company from tracking data about their toys’ usage. Another loss is the “right to run,” or to use our purchased products however we would like, as illustrated by Apple regulating which applications iPhone users can install or Nintendo blocking the use of Wii U consoles unless users agreed to a new end-user license agreement. (This also applies to manufacturers requiring software updates to continue running, essentially enabling them to force consumers’ personal possessions to change under their noses.)

There is also the “right to hack,” which includes the right to repair, as demonstrated in the John Deere tractor imbroglio. Then there is the “right to sell,” which the owner of digital media and software typically lacks, both negating their ability to recoup costs and eliminating the secondary market that can make goods affordable to more consumers.

As new as these dynamics may seem, Fairfield argues that they actually hark back to an old, long-reigning system of ownership: feudalism. “Fine, now it’s not grand aristocratic families, it’s Silicon Valley Big Tech companies,” he says. “But it’s an identical system in terms of one person giving a right to another giving it to another giving it to another, who eventually hands on a little bit of it to you. And if anybody above you doesn’t like it, or you don’t use it the way they tell you, the whole thing goes away.”

What is new is the ability of these supposed possessions to actually operate with a greater loyalty to their manufacturer’s interests than their user’s, as with Nintendo’s forced Wii U agreement or Keurig 2.0 machines’ initial refusal to brew non-Keurig coffee. (Sometimes the manufacturer even abuses this primary loyalty to force a U2 album upon the public.) Worse yet, our possessions may actually actively conspire against us, as when our browser histories help online retailers price discriminately. As more of our devices interact and collect data while prioritizing the motives of their makers, Fairfield writes, consumers may be increasingly “beaten at the economic game of poker by those who use our devices to see our cards.” In The End of Ownership: Personal Property in the Digital Economy, Aaron Perzanowski and Jason Schultz argue the goal of such leverage is for companies “to divide our lives into individual transactions and charge as much as we are willing to pay for each one.”

The stakes of these issues increase the more integral “smart” objects become to our lives. Some cars now have devices that allow them to be disabled remotely in the case of missed payment. Home automation systems can introduce IP rights debates into real estate. An extension of John Deere’s tractor argument could reason that those with advanced prosthetics do not truly own their limbs. “It’s not just, ‘Oh you get a new shiny device and it works according to the way its manufacturer wants it to,” Fairfield says. “It’s that things we’ve always relied on for our livelihoods are actively being removed from our power.”

Still, Fairfield is optimistic. Market forces (read: the self-interested collaboration of music industry giants and Amazon, against Apple) have freed downloaded songs from prohibitive digital rights management (DRM) restrictions. “Right to repair” legislation has passed or gained momentum on the state and international levels. Alliances have formed between parties as disparate as hackers and hog farmers. Among federal lawmakers, Big Tech skepticism is growing and bipartisan. Powering these developments is the sort of intuitive logic that can shape social norms, forcing the law to follow.

“People are going to use their property as property regardless of what it says on page 74 of the end-user license agreement,” Fairfield says. “This fight is going to be won. It’s not just winnable. It’s inevitable.”

Whatever limits our rights-holding lords may impose on accessing and using our own supposed property, the larger, growing shift to digital and software-embedded goods also makes us vulnerable to the effects of both time and progress. In the 1990s, concerns began growing around the idea of a potential “digital dark age”: a future absence of historical data and documentation caused by their storage formats becoming outdated. Anything used to save and access a file now would also need to be available and functional in 10, 20, 100 years in order to do so then — an unlikely prospect in a world where new technology accelerates rapidly, and where capitalism incentivizes devices’ and software’s eventual obsolescence so that you may be sold a replacement. Possessions and records would then become “trapped” in their outmoded states; imagine, for instance, being handed a 3.5-inch floppy disk and tasked with accessing what’s on it, but on a societal scale.

Thankfully, professional archivists have spent the past few decades working to address these issues. Standards have been developed governing how to migrate files, replicate records, and emulate software environments so that data may be accessed once our phones, computers, and their associated programs all become deeply outdated. Yet even such developments have their real-world limits. “Standards are good to follow for organizations, for governments — for anybody who has money,” says Luciana Duranti, a professor of archival sciences at the University of British Columbia. “For private people, it’s a lot of being proactive.”

It’s not hard to see the drawbacks of a future where the only things preserved are those that were consciously, deliberately maintained, primarily by powerful institutions. Scores of valuable cultural artifacts have survived almost incidentally, tucked away in some owner’s closet or a collector’s stash, and proven to have historical or educational value later; the more marginalized or niche the work’s source, the less likely it would seem to be painstakingly migrated and cataloged for future rediscovery.

Now, about those DVDs: Will a cultural historian someday seek my copy of The Wrestling Road Diaries as a foundational text? Probably not. (But who’s to say?) In fact, if my apartment were suddenly frozen, Pompeii-like, so many of my life’s possessions — the record of my daily life — would be inaccessible to an archaeologist decades or centuries in the future. I have already gladly conceded on so many other fronts. The music I listen to (that isn’t streamed) is tied to proprietary software on hardware that is sure to age and degrade; ditto my massive collection of personal photos and written (or typed) correspondence. A combination of the locks installed by our digital overlords to control present use and the inherent non-autonomy of digital goods would likely obstruct future access. An observer of my possessions, staring at a software-embedded object on which all my data and files are no longer accessible, might wonder, “What did this person have?” It would be a good question.

And so, yes, I still own those DVDs, though not all of them. For the eventual move, I whittled their number to one container, with room to store other rarely needed items on top. They sit idle in the same gray linen box at the base of the same TV stand, freed from the binds of software, surrounded by dozens of books, collecting dust as an afterthought, resting on stubborn, weathering principles.

Author: Dan Greene

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