INTRODUCTION

In July 2009, Amazon remotely deleted some Kindle users’ copies of 1984 and Animal Farm from their devices after a rights dispute with the publisher.[1] This incident was not the first instance of Amazon removing titles and served as a reminder that digital “purchases” can function as revocable access rather than permanent ownership.[2]

A similar dynamic has become evident in modern games, as seen in Ubisoft’s 2024 shutdown of the online racing game The Crew, rendering the title unplayable even for consumers who had paid for it.[3] This prompted a class-action lawsuit in California, where plaintiffs alleged that by buying physical copies of the game, they thought they were purchasing the game, not simply its license.[4] Ubisoft responded by “insist[ing] that buying a game doesn’t give players ‘unfettered ownership rights’ to it, only a ‘limited license to access the game.’”[5]

These disputes reflect a widening gap between language aimed at consumers and the legal framework governing digital distribution.[6] Under copyright law’s First Sale Doctrine, the first inquiry is often “whether a transferee of a copy of a copyrighted work is an owner or licensee of that copy.”[7] When transactions are classified as licenses, consumers may find that rights they associate with ownership, resale, lending, retention, and even continued use are limited not only by contract terms, but also by technical access controls.[8]

The shift from ownership to licensing has shifted the risk from platforms to consumers by converting “purchase” into permission. Access can be modified, revoked, or terminated when services end, formats change, or licensing disputes arise.[9] This discrepancy matters not only for individual consumers, but also for secondary markets and preservation of media, especially where technical controls and anti-circumvention rules make continued use or migration difficult when platforms discontinue support.[10] Clarifying the boundary between purchases and licenses highlights why licensing has become the default and why the resulting loss of transferability and ownership has prompted disclosure-focused legislative responses that have only partially addressed the issues.[11]

OWNERSHIP AND THE FIRST SALE DOCTRINE

When consumers buy physical media such as books, CDs, DVDs, or video games, they generally understand that they acquire that particular copy and may keep it, lend it, or transfer it like other personal property.[12] That expectation is reflected in the Copyright Act’s First Sale Doctrine, which states “the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of possession of that copy or phonorecord.”[13]

The right to “sell or otherwise dispose” depends on being “the owner of a particular copy,” not merely someone permitted to use it.[14] The Supreme Court has described the First Sale Doctrine as a limitation that protects secondary markets by limiting copyright owners’ ability to control lawfully made copies after the initial authorized transfer.[15] Because the first sale doctrine turns on ownership of a copy, disputes about whether a transaction is a sale (or something else) are not semantic because they determine whether downstream transfer rights exist at all.[16]

This framework matters because digital distribution often uses “buy” or “purchase” language while structuring transactions as ongoing, conditional permission, and raises the question of whether the user is an “owner” of a “particular copy” in the statutory sense.[17]

WHEN PURCHASE IS TREATED AS A LICENSE

Because the First Sale Doctrine applies only to “the owner of a particular copy,” courts evaluating digital media and software transactions often confront the question of whether the transaction transferred ownership of a copy or granted a limited right to use the work.[18] In the Ninth Circuit, that question has been central in cases involving software distributed with terms that restrict transfer and use.[19]

In Vernor v. Autodesk, Inc., the Ninth Circuit held that a software user was a licensee, not an owner, where “the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.”[20] Under that framework, contractual terms are not just labels but restrictions on transfer and use that indicate the copyright holder has retained sufficient control to characterize the transaction as licensing.[21] The practical effect is to place many consumer “purchases” outside of the First Sale Doctrine when the terms of access resemble a continuing, conditional relationship rather than an outright transfer of a copy.[22]

The consequences of this classification can be substantial. If the user is a licensee rather than an owner, the First Sale Doctrine does not confer a statutory right to resell or otherwise dispose of the copy, even when the transaction looks and feels like an ordinary retail purchase.[23] The result is a gap between the language consumers see at the point of sale and the legal rights they receive.[24]

WHY LICENSING BECAME THE DEFAULT MODEL

Licensing has become more common in large part because digital distribution makes access-based models cheaper to deliver and easier to manage than manufacturing and shipping physical copies.[25] Streaming and subscription growth have also made recurring-revenue models more prevalent in media, as they reinforce incentives to sell ongoing access rather than owned copies.[26] Platforms also prefer licensing because it increases control over catalogs and pricing, allowing providers to add, remove, or repackage content and to divide offerings by subscription tiers.[27]

The control advantages are reinforced by technical protections, commonly called digital rights management (DRM), which can restrict copying and access in ways that are difficult to replicate for physical media.[28] Federal law supports this framework by prohibiting circumvention of certain “technological measures” that control access to copyrighted works, making it more difficult for consumers to bypass authentication or DRM locks, even to preserve access.[29] For providers, DRM access controls can reduce unauthorized copying and support ad-supported tiers or premium libraries, which increases revenue in markets where copying is easy and distribution costs are low.[30]

Modern software and video games increasingly depend on remote servers and authentication services for core functions, so continued access usually comes with what has been called “live service game” or “games as a service” rather than a standalone game.[31] For publishers, tying core gameplay to servers supports recurring monetization and sustained engagement while preserving control over content and pricing through continuous updates.[32] In that environment, language may describe a transaction that is functionally and legally closer to a license than a traditional “purchase,” which has been flagged as a possible source of confusion for consumers.[33]

THE PITFALLS AND HARMS OF PERMISSION-BASED “PURCHASES”

When access is licensed rather than owned, the consumer’s risk profile changes because continued use may depend on account status, authentication, and the provider’s ability to support the service.[34] That dependency can make “purchased” media less durable than physical media, because a platform can remove functionality that enables long-term retention or local control even where consumers reasonably expected permanent access.[35] The Amazon Kindle incident (described above) and later feature changes that reduced local backup options illustrate how access can be narrowed after the point of sale.[36]

Licensing also undermines traditional elements of ownership, especially transfer, resale, and lending. Because the First Sale Doctrine protects only “the owner of a particular copy,” a user classified as a licensee may have no first sale right to dispose of what was marketed as a “purchase.”[37] Even where consumers seek a “used goods” market for digital files, copyright law can foreclose it because digital transfers often require making a new reproduction.[38] In Capitol Records, LLC v. ReDigi Inc., the Second Circuit held that a service designed to enable the resale of “used” digital music infringed copyright because its resale process necessarily resulted in an unauthorized reproduction, and was not covered by the First Sale Doctrine or Fair Use.[39] The Copyright Office’s Fair Use Index summary explained that digital resale systems often involve reproducing the work, which triggers the reproduction right even if the goal was to have a “used-goods” market.[40] The practical result is that consumers are left with few lawful avenues to resell, gift, or lend many categories of digital media that are routinely available in physical media.[41]

The combination of licensing and technical controls can frustrate preservation and continued usability, particularly for software and games that rely on authentication servers or online services.[42] Because DRM and access controls can prevent continued use outside of approved environments, and federal law generally prohibits the circumvention of certain access control measures, users may be unable to keep lawful media functional when platforms discontinue support or shut down servers.[43] Ubisoft’s shutdown of The Crew is a concrete example of how a service-dependent framework can remove access entirely, even for paying consumers.[44]

ALIGNING “PURCHASE” WITH WHAT CONSUMERS RECEIVE

One response is disclosure, requiring platforms to clarify when “buy” or “purchase” means a revocable license rather than ownership.[45] California has adopted a statute aimed at curbing false or misleading “purchase” terminology where consumers receive only a license.[46] Disclosure alone, however, may not fully address the durability and end-of-life problems where continued access depends on servers and access controls.[47]

A second response is to pair labeling with baseline obligations that track reasonable consumer expectations, such as clearer end-of-life terms, advance notice, and continued access (or functional alternatives) when a service is terminated, so the risk of a shutdown is not silently shifted to consumers at the point of sale.[48] Courts and policymakers should scrutinize the gap between “purchase” language and the restricted rights that often follow, particularly where technical measures and anti-circumvention rules make self-help preservation impracticable.[49]

Focusing the laws on what consumers reasonably understand they are buying, especially when marketing invokes ownership, would help restore the basic norms that physical media have long provided.[50]

CONCLUSION

Digital markets are increasingly selling consumers the language of ownership while delivering the legal and technical realities of licenses.[51] The First Sale Doctrine assumes a world of durable, transferable copies, yet many modern transactions are structured and often enforced as licenses that restrict transfer and depend on continued platform support.[52] When services end, features change, or access controls remain locked in place, consumers can lose the practical benefits they reasonably expected from their purchase.[53]

Legal responses should therefore focus not only on clearer disclosures, but also on aligning remedies and end-of-life obligations with what “purchase” implies to ordinary buyers.[54] If “buy” or “purchase” is used, the law should move closer to ensuring that what is sold looks more like ownership than revocable access.

[1] Bobbie Johnson, Amazon Kindle Users Surprised by ‘Big Brother’ Move, THE GUARDIAN (July 17, 2009, 6:39 PM), https://www.theguardian.com/technology/2009/jul/17/amazon-kindle-1984.

[2] Id.

[3] Nicole Carpenter, Ubisoft Sued for Shutting Down The Crew, POLYGON (Nov. 11, 2024, 1:28 PM), https://www.polygon.com/gaming/476979/ubisoft-the-crew-shut-down-lawsuit-class-action/.

[4] Id.

[5] Vikki Blake, Ubisoft’s The Crew Lawsuit Insists We Do Not Own the Games We Buy, IGN (Apr. 10, 2025, 5:38 PM), https://www.ign.com/articles/ubisofts-the-crew-lawsuit-insists-we-do-not-own-the-games-we-buy.

[6] See Amy Hebert, Do You Really Own the Digital Items You Paid For?, F.T.C. CONSUMER ADVICE (Apr. 17, 2024), https://consumer.ftc.gov/consumer-alerts/2024/04/do-you-really-own-digital-items-you-paid.

[7] Vernor v. Autodesk, Inc., 621 F.3d 1102, 1108 (9th Cir. 2010).

[8] See Hebert, supra note 6; 17 U.S.C. § 109(a) (2026).

[9] See Hebert, supra note 6; Andrew Liszewski, Amazon’s Killing a Feature That Let You Download and Backup Kindle Books, VERGE (Feb. 14, 2025, 4:59 PM), https://www.theverge.com/news/612898/amazon-removing-kindle-book-download-transfer-usb.

[10] See 17 U.S.C. § 1201(a) (2026); Daniel Horowitz, What is a Live Service Game: Games as a Service (GaaS)?, HP (June 28, 2021), https://www.hp.com/us-en/shop/tech-takes/what-is-a-live-service-game-games-as-a-service-gaas; Aron Gerencser, Live-Service is Killing Video Game Conservation, XFIRE (Nov. 20, 2025, 4:46 PM), https://www.xfire.com/live-service-killing-video-game-conservation-7e9e.

[11] Cal. Bus. & Prof. Code § 17500.6(b)(1) (2025); see Hebert, supra note 6.

[12] See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 523–24 (2013).

[13] 17 U.S.C. § 109(a) (2026).

[14] 17 U.S.C. § 109(a), (b).

[15] See Kirtsaeng, 568 U.S. at 524–25; Quality King Distribs. v. L’Anza Research Int’l, 523 U.S. 135, 151–52 (1998).

[16] See Kirtsaeng, 568 U.S. at 524–25; 17 U.S.C. § 109(a).

[17] See Hebert, supra note 6; 17 U.S.C. § 109(a).

[18] 17 U.S.C. § 109(a), (b); see Vernor v. Autodesk, Inc., 621 F.3d 1102, 1108–09 (9th Cir. 2010).

[19] See Vernor, 621 F.3d at 1108–09.

[20] Id. at 1111–12.

[21] Id.

[22] Id. at 1108–12.

[23] Id.; 17 U.S.C. § 109(a), (b); see Hebert, supra note 6.

[24] See Hebert, supra note 6.

[25] Anja Lambrecht et al., How Do Firms Make Money Selling Digital Goods Online? 3–4 (Rotman Sch. of Mgmt., Working Paper No. 2363658, Apr. 28, 2014), https://ssrn.com/abstract=2363658.

[26] See Georg Szalai, Streaming to Overtake Pay TV Subscription Revenue in the U.S. This Year, HOLLYWOOD REP. (Feb. 26, 2024, 8:09 AM), https://www.hollywoodreporter.com/business/business-news/streaming-overtake-pay-tv-subscription-revenue-us-q3-2024-ampere-analysis-1235835978; Stephanie Prange, DEG: Ad-Supported Subscription Streaming Revenue Soared in 2025, With Digital Sales and Rentals Resilient, MEDIA PLAY NEWS (Feb. 12, 2026), https://www.mediaplaynews.com/deg-ad-supported-subscription-streaming-revenue-soared-in-2025-with-digital-sales-and-rentals-resilient.

[27] See James K. Willcox, Guide to Streaming Video Services, CONSUMER REPORTS (Aug. 27, 2025), https://www.consumerreports.org/electronics-computers/streaming-media/guide-to-streaming-video-services-a4517732799; Dessi Gomez, Streamer Subscription Prices and Tiers – Everything to Know as Costs Rise and Ads Abound, DEADLINE (Oct. 21, 2025, 11:45 AM), https://deadline.com/feature/streaming-subscription-prices-ad-tiers-1236195912.

[28] See The Pros, Cons, and Future of DRM, CBC NEWS (Aug. 7, 2009, 4:17 PM), https://www.cbc.ca/news/science/the-pros-cons-and-future-of-drm-1.785237.

[29] 17 U.S.C. § 1201(a) (2026).

[30] See Willcox, supra note 27; Gomez, supra note 27; The Pros, Cons, and Future of DRM, supra note 28; 17 U.S.C. § 1201(a).

[31] See Horowitz, supra note 10; Gerencser, supra note 10.

[32] See Horowitz, supra note 10; Gerencser, supra note 10.

[33] See Hebert, supra note 6.

[34] Id.; Horowitz, supra note 10; Gerencser, supra note 10.

[35] See Andrew Liszewski, Amazon’s Killing a Feature That Let You Download and Backup Kindle Books, VERGE (Feb. 14, 2025, 4:59 PM), https://www.theverge.com/news/612898/amazon-removing-kindle-book-download-transfer-usb; Hebert, supra note 6.

[36] See Johnson, supra note 1; Liszewski, supra note 35.

[37] 17 U.S.C. § 109(a), (b); see Vernor v. Autodesk, Inc., 621 F.3d 1102, 1108–12 (9th Cir. 2010).

[38] See Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649, 655–56 (2d Cir. 2018).

[39] Id.

[40] U.S. COPYRIGHT OFF., Fair Use Index Summary, Capital Records, LLC. V. Redigi Inc., No. 16-2321 (2d Cir. Dec. 12, 2018), https://www.copyright.gov/fair-use/summaries/capitol-records-llc-redigi-inc-no.16-2321-2nd-cir.dec.12.2018.pdf.

[41] See id.; Hebert, supra note 6.

[42] See Horowitz, supra note 10; Gerencser, supra note 10.

[43] 17 U.S.C. § 1201(a); see The Pros, Cons, and Future of DRM, supra note 28; Horowitz, supra note 10; Gerencser, supra note 10.

[44] See Carpenter, supra note 3.

[45] CAL. BUS. & PROF. CODE § 17500.6(b)(1) (2025).

[46] Id.

[47] 17 U.S.C. § 1201(a); see Horowitz, supra note 10; Gerencser, supra note 10.

[48] See Carpenter, supra note 3; Hebert, supra note 6.

[49] 17 U.S.C. § 1201(a); see Hebert, supra note 6.

[50] 17 U.S.C. § 109(a), (b); see Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 524–25; Quality King Distribs. v. L’Anza Research Int’l, 523 U.S. 135, 151-52; Hebert, supra note 6.

[51] 17 U.S.C. § 1201(a); see Vernor v. Autodesk, Inc., 621 F.3d 1102, 1108–12; Hebert, supra note 6.

[52] 17 U.S.C. § 109(a), (b); see Vernor, 621 F.3d at 1108–12.

[53] 17 U.S.C. § 1201(a); see Carpenter, supra note 3; Liszewski, supra note 35; Capitol Records, LLC v. ReDigi Inc., 910 F.3d 648, 655–56 (2d Cir. 2018).

[54] CAL. BUS. & PROF. CODE § 17500.6(b)(1) (2025); see Hebert, supra note 6.