Gone but Not Forgotten: The Digital Ownership Dilemma and the Rise of Lost Media
By Arthi Annadurai ; Photo Credit: Russell Falcon/Nexstar
For decades, owning media meant having a tangible copy, such as CDs, DVDs, and VHS tapes. This meant the media was something you could lend, sell, or keep forever. But in the era of digital media, “ownership” has become a more ambiguous concept. Recent removals of digital content from platforms like Apple, PlayStation, and streaming services have raised concerns about lost media and what it means to “own” something in the digital age.[1]
When you buy a digital movie on Amazon, it feels like you are making a purchase just as you would a physical DVD. However, digital transactions differ from traditional purchases because you enter a licensing agreement.[2] For instance, Amazon Prime Video grants you a “non-exclusive, non-transferable, non-sublicensable, limited license” to access and view the digital content for personal, non-commercial use.[3] Thus, rather than buying content outright, you have revocable access to it. This becomes aware to users when films and TV shows they had “purchased” disappear from their libraries due to licensing expirations or platform shutdowns.[4] Unlike physical media, digital media exists at the mercy of the rights holders and distributors.
Recent content removals by PlayStation and Nintendo underscore consumers’ growing frustration when the companies shut down access to entire libraries of content.[5] In December 2023, Sony only gave PlayStation users a few weeks of notice before suddenly revoking access to Discovery content.[6] Earlier that year, Nintendo had shut down its Wii U and 3DS digital storefronts, resulting in inaccessibility of hundreds of digital-only titles such as Dr. Luigi and Pokémon Picross.[7] These incidents highlight the tension between consumer expectations and legal realities in the digital marketplace.
The issue of disappearing content extends beyond personal digital libraries, raising significant concerns about lost media, or works that become inaccessible and risk fading from public memory.[8] Streaming services have increasingly removed films and TV shows to cut costs by avoiding licensing fees and residual payments to creators.[9] This trend is exemplified by Warner Bros. Discovery’s decision to remove popular HBO titles like “Westworld” and “The Time Traveler’s Wife” from HBO Max following its merger, as well as Disney+’s removal of over fifty “underperforming” shows and movies.[10] Such corporate decisions not only erase content from platforms but also contribute to the growing phenomenon of lost media where creative works are effectively erased from cultural access.[11]
The widespread issue of digital ownership has now reached the courts, with judges beginning to scrutinize whether companies mislead consumers about the permanence of their digital purchases. In McTyere v. Apple, Inc., consumers sued Apple for making false representations by employing a “Buy” button on the iTunes Store when selling digital content that the company later revoked consumer access to.[12] The United States District Court for the Western District of New York determined that consumers might feel reasonably misled when purchasing digital content under the impression that the content could not be later removed from their libraries.[13] The court also suggested that the iTunes Store terms and conditions did not sufficiently inform consumers that their purchased digital content could disappear.[14] As such, the case has proceeded to trial.
Legal challenges such as McTyere v. Apple, Inc. signal a growing push for greater transparency in digital transactions, but until stronger safeguards are established, digital media will remain vulnerable to sudden removals and the risk of becoming lost forever.
Arthi Annadurai is a second-year law student at Vanderbilt Law School. She graduated from the University of North Carolina at Chapel Hill in 2023.
[1] See e.g., McTyere v. Apple, Inc., 663 F. Supp. 3d 247, 252 (W.D.N.Y. 2023); Jay Peters, PlayStation Keeps Reminding Us Why Digital Ownership Sucks, The Verge (Dec. 5, 2023, 1:30 PM), https://www.theverge.com/2023/12/5/23989290/playstation-digital-ownership-sucks; Eric Deggans, Popular Titles Are Vanishing From HBO Max After Merger, NPR (Dec. 17, 2022, 5:08 PM), https://www.npr.org/2022/12/17/1143901911/popular-titles-are-vanishing-from-hbo-max-after-merger.
[2] Aaron Perzanowski et. al., What Did I Just Buy? The End of Ownership: Personal Property in the Digital Economy, 34 Issues in Sci. and Tech. 91, 91 (2018).
[3] Amazon, Prime Video Terms of Use, https://www.primevideo.com/help?nodeId=202095490&view-type=content-only (last visited Feb. 23, 2025).
[4] See e.g., McTyere, 663 F. Supp. 3d at 252; Peters, supra note 1; Emma Roth, Nintendo’s Wii U and 3DS eShops Shut down Today, The Verge (Mar. 26, 2023, 4:48 PM), https://www.theverge.com/2023/3/26/23657431/wii-u-nintendo-3ds-eshops-shut-down.
[5] Peters, supra note 1; Roth, supra note 4.
[6] Peters, supra note 1.
[7] Roth, supra note 4.
[8] Katherine Luck, In Search of Lost Media, Medium (Mar. 29, 2021), https://katherineluck.medium.com/in-search-of-lost-media-c48edf9647e0.
[9] Sarah Whitten & Lillian Rizzo, Streaming Services Are Removing Tons of Movies and Shows—It’s Not Personal, It’s Strictly Business, CNBC (May 29, 2023, 8:00 AM), https://www.cnbc.com/2023/05/29/streaming-services-remove-movies-shows-heres-why.html.
[10] Deggans, supra note 1; Jess Weatherbed, Disney Will Remove Over 50 Shows From Disney Plus and Hulu This Month, The Verge (May 19, 2023, 4:42 PM), https://www.theverge.com/2023/5/19/23729642/disney-plus-hulu-remove-pull-shows-willow-streaming-bob-iger.
[11] See Mark Lemley, Disappearing Content, 101 B.U. L. Rev 1255, 1264–65 (2021).
[12] McTyere, 663 F. Supp. 3d at 252.
[13] Id. at 255.
[14] Id. at 256.