0.0 Context Setting

Monday, 29 June 2026 in Portland, Oregon, where the U.S. Supreme Court is definitely asserting its supremacy and I have belatedly realized that the Not A War On Iran is perhaps the first war that has business hours, i.e. it only runs when the stock markets are closed?

One thing that caught my attention this time.

Hey, did you know I do consulting? I totally do consulting and I bet some of you know people who need my help.

1.0 Things That Caught My Attention

1.1 You Broke It, We (Should) Own It

So Sony is in the news because the commercial licensing agreement it made with a content provider (Studio Canal) was for a time-limited license, which is just a long-worded way of saying that the movies people thought they bought from Sony’s online store are being deleted from their accounts¹.

You’ll note that I said “deleted from their accounts” but if you click through to Sony’s perfunctory notice, what they actually say is:

From September 1, 2026, due to our content licensing agreements, you will no longer be able to access your previously purchased content from Studio Canal, and it will be removed from your video library. Thank you, PlayStation Store

(which I suppose is an object lesson in “just say the thing and don’t try to say anything else like justify it or apologize, get it out and move on)

Anyway the point I’m making with my ex-lawyer hat on is that this is a very carefully worded statement that talks about content being removed from your video library.

In what feels like decades since anyone could have possibly predicted that something like this could happen (i.e. the licensing of digital content vs the purchasing of it), the State of California in 2024 passed a law² to cover the circumstances where a consumer might think they’re buying something i.e.”an unrestricted ownership interest in the digital good” and preventing anyone who runs a digital storefront from using words like “buy” or “purchase”. Or in other words, that law is the reason why you might have seen a notice in a digital store that you’re not buying something, you’re just getting a license to it. Which I’m sure everyone understands.

Look I like to remind myself that we live in a world where we can just, like, make up rules if we want to? Certainly we’re seeing the effects of an U.S. administration that is behaving as if it can just make up rules and testing the boundaries of “well what are you going to do, stop us?”

In that world, I think California potentially bottled it³ when it could’ve done something like this:

• Oh I don’t know, something like a reverse compulsory purchase?
• Say I think I bought a copy of Terminator 2
• But I didn’t actually buy a copy of Terminator 2, I bought a license to access Terminator 2
• The license I bought was from Sony (“the Terminator 2 Sony license”)
• Sony itself was licensed to sell licenses like the Terminator 2 Sony License by Studio Canal. (“Sony’s License License”) (yes I am doing this on purpose as an act of rebellion from my undergrad law days)
• But Sony’s License License itself had a limited term, and upon the end of that term all of the downstream licenses would be revoked
• Upon revocation, California could step in with the double-barreled pump-action shotgun it liberated from a biker outside a dive bar, and say hey, the rightsholder must grant an irrevocable license to replace the Terminator 2 Sony License. Sucks to be you! You get to eat any cost!

Let’s just pretend that I am being very naive and inspired by say the Mamdani-Method, which is “we can just do things” and then find out what happens afterwards. Why would a state go so hard as to require some sort of specific performance/injunctive relief (i.e. nah, you can’t revoke the license. Ever)?

I mean apart from the whole deal with being on the side of a consumer and recognizing the power asymmetry inherent in contracting in this day and age. That whole thing.

Because you could do that (actually just treat revocable licenses as irrevocable when they’re revoked) and I’d argue it’d be a state signaling mechanism to storefront operators that “hey, people have a generally accepted meaning of the word “buy” and come on you’ve been totally tricking them with it by burying how licenses work in terms and conditions that we can stipulate nobody actually reads”. Going into the “terms and conditions nobody actually reads” opens a whole can of worms to do with contracting and how business works these days that I think would actually be useful and productive to discuss in, say, the context of part of a political platform!

You see, this started with “oh look, Sony’s in the news again because people have been reminded that the stuff you buy online isn’t actually stuff you buy”. But that’s just part of the general experience of, well, being alive and surrounded by the internet these days? Being alive and surrounded by the internet means you probably use streaming, which means the ad-free streaming subscription you had suddenly has ads in it now, and you can pay another $3 (or whatever it is this month) to not have ads in it. But it’s not like you’ve got certainty anymore that the +$3/mo plan you upgrade won’t continue to be ad-free either! It’s not like you really believe that this price-for-life deal is going to be honored, right?

(At least, not since there was a bunch of precedent that said you can totally make up some things (but not others) in the description or advertisement of your goods or services).

The licensing thing is just a symptom of asymmetry in power and the asymmetry in power is a symptom of government captured by corporate interest. I am not saying anything new here, I get that.

If you were to do a do-over, i.e. figure out a (fair? fairer?) regulatory commercial regime for digital goods and services, what would that look like? Exactly how much did we box ourselves in by having terms and conditions boilerplate that in my opinion reflect as much a laissez-faire indifference to having a strong point of view on how digital goods and services should work?

Like, it is funny now how often you will get an email from a service provider that’s the equivalent of bumping into you and saying “oh sorry, our terms of service and privacy policy have changed” and then there’s, like, nothing you can do about it other than stopping to use the service?

Organizations like car manufacturers and anyone who makes anything that isn’t predominantly software are so super excited about the concept of software-defined-x where the x is something like “a Mercedes” and the “software-defined” part is “you have to pay a subscription to turn on heating for your seats”.

But allowing access and features to be dictated by network-accessible software is just, like, enabling a business practice. It’s the business that says “you know what, moving people to a subscription payment system for functionality that used to be granted at a one-time cost sounds great, let’s do that” and it’s a lack of regulation that allows it. The thing is “can’t heat seats without paying a subscription fee” is actually a bit more nuanced because it’s more like “heat seats remotely” and it’s true that the ability to heat seats remotely requires a whole bunch of technical infrastructure that needs to be maintained and kept up-to-date, which also costs money!

Perhaps it is worth having a discussion about this as a society! I’d argue that a more proactive and informed government should never have let fly for a minute language like “buy” for digital content and should’ve made sure that you were only ever getting access to a thing for a while. I am sure that the EFF have been yelling about that since forever!

But again, this just boils back to: are there any consumer protections? And I hate to have to bring it back to U.S. politics (and I guess I don’t have to? But I’m going to anyway?) but turns out that the federal trade commission isn’t independent, you can totally politicize it and you don’t need anything like a bureau to protect consumers from finance [sic] (you should totally be protected from finance).

One argument that crops up is like this: well if we put rules in place like requiring storefronts to sell irrevocable licenses then nobody would’ve wanted to sell them in the first place or they would’ve cost too much and there wouldn’t have been any profit in it and you wouldn’t have ended up with this amazing convenience culture where you can suddenly get access (not buy!) to a film inside of five seconds.

But I feel like we don’t know that, actually? Like, that’s just a vibe, or it’s a vibe a bunch of economists made up? In this particular case it comes down to the intersection of intellectual property rights and contract law and what makes a contract an unfair contract⁴. And I realize the high-level counterargument here is “well if you want that then you want the European Union and we all know that all the super popular internet services come out of the EU regulatory regime” which is what you would say if you knew it to be not true and were saying it on person knowing it was not true.

I suppose in the end this also comes down to another take on what I was thinking about before: the trading of agency for convenience⁵. I’d caveat (or expand?) on that a bit more this time around. The agency part isn’t just whether you can do something or not, but also the choices that are available to you.

I’ve written about this one before as well: say a new distribution technique comes along like streaming that on the face of it is going to be way more profitable to a corporation than the previous distribution method (stamping discs, putting them in holders, moving them around). You are totally allowed, indeed it is seen as progress to just stop making the physical media and switch entirely to digital distribution. You might even do that if you were say about to release one of the most anticipated pieces of culture this decade, i.e. Grand Theft Auto 6, where you’ve decided to not have a physical edition but for boxes in stores to just have a code that can be redeemed for a download.

There are actually some reasonable points of view here that like a game like GTA 6 might be north of 200GB, which could translate to 4+ Blu-Ray discs, which is a lot of discs these days! Never mind having to stamp at least three different kinds of those Blu-Ray discs for each format.

But at some point, there might be some cultural work that is of national significance like some story about how a bunch of spice girls came together to save the world from demons that you can only access if you pay a subscription fee? And a society gets to decide if that’s OK? Like, a society could decide that if you wanted copyright protection a condition might be that after a while you’re required to provide DRM-free access! Or you’re required to provide physical copy access! And sure, providing physical copies might be expensive, but maybe there’s a cap that makes sure nobody’s getting completely screwed on pricing?

ANYWAY.

All of this is to say: it would be nice if we had some sort of recognition of what it is like to have to deal with online services these days.

Phew. Huh. I could be doing better!

How are you?

Best,

Dan