Bruce Willis might be suing Apple UPDATE: But he isn't.

The actor apparently wants to leave his iTunes collection to his four daughters.

The Daily Mail reports the Bruce Willis – he of Die Hard, Pulp Fiction, and, of course, "worst picture of the decade" nominated mega-flop Hudson Hawk fame – is said to be considering legal action against Apple, in order to be able to leave his iTunes collection to his daughters.

Neil Sears writes:

If he succeeds, he could benefit not just himself and his family but the millions who have purchased songs from Apple’s iTunes Store.

Willis has discovered that, like anyone who has bought music online, he does not actually own the tracks but is instead ‘borrowing’ them under a licence.

Most purchasers do not bother to read the details of the terms and conditions they agree to when buying an album but the small print makes it clear that music bought through iTunes should not be passed on to others.

At the risk of being wrong: Willis is not going to win this one.

European courts have been increasingly active in ruling that "first sale doctrine" – which states that exclusive rights to distribution are exhausted after the first sale – holds for digital goods, since a right to use a good for an unlimited period of time, when exchanged for money, is legally indistinguishable from a sale. This was most recently demonstrated when the ECJ declared in July that consumers have a right to resell downloaded software as "used".

US courts, on the other hand, have been far more inclined to treat the licenses under which digital goods are sold as legally enforceable contracts. So, for instance, MDY v Blizzard, a case in which Blizzard Entertainment, the developer of World of Warcraft, sued a manufacturer of cheating software, was found in Blizzard's favour in part because it was held that users are merely licensees, not owners, of the World of Warcraft software.

For Willis to win, he would most likely have to get the contract declared unenforceable, which would have far more wide-ranging effects than merely letting him pass music on to his daughters. For one, it would open the door to used sales of digital media, but it would also severely limit the ability of businesses to control how their digital goods are used. Whether this is a good thing or not depends on whether those businesses then change their offerings. But, as one example, would Adobe continue to sell student editions of their software if first sale doctrine allowed those students to resell the software at will?

Update

We should have known it was too good to be true. The Guardian's Charles Arthur reports that Willis' wife has denied the story, and that the Mail's reporting of it was most likely an uncredited lift from the Sunday Times. But where did the story come from? Arthur writes:

There's an article from Marketwatch, from 23 August, which bears an odd resemblance - but it has no mention of legal challenge. It's all talk about Estates and Wills.

Which brings us to a horrible pause: might it be that someone saw a mention of "Estates and Wills" and thought it was "estates and Willis"?

Erk.

Bruce Willis when he's not suing Apple. Photograph: Getty Images

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

Getty
Show Hide image

Labour can be populist and English without copying Donald Trump

There's nothing deplorable about discussing the common interests of the people.

As Labour’s new populism gears up for Copeland and Stoke-on-Trent, it will be tested on voters who are, by a significant measure, more likely to see themselves as English. In the 2011 census, both constituencies scored "English" identity nearly 10 per cent higher than the English average and still 5 per cent higher than England outside of London.

It’s no surprise that both Ukip and the Tories have polled well in these places. In the 2015 general election there was strong correlation between feeling "English", or feeling "more English than British", and voting Ukip and Conservative. Indeed, amongst the "English not British" Ukip took about a third of the votes across England, and the Tories a fifth. Labour lagged below 15 per cent.

Labour’s problems may be getting worse. A recent YouGov poll, commissioned by the Centre for English Identity and Politics at Winchester University, showed "Englishness" gaining at the expense of "Britishness" in the year of Brexit. At the extremes, "English not British" rose by 5 per cent (from 14 per cent to 19 per cent), with ‘British not English’ falling by a similar amount. If past relationships hold, these voters will become harder for Labour to reach.

Although most people in England would favour an English Parliament, or English MPs alone voting on English issues, these have not yet become the political demands of an explicit nationalism as we might find in Wales, Scotland or Catalonia. Indeed, there’s no actual evidence of a direct link between feeling English and the way people vote. It well be that the underlying factors that make someone feel English are also those that incline them, overwhelmingly, to vote Brexit or to support Ukip.

We may identify the drivers of English identity - the declining power of the idea of Britain, the assertiveness of devolution, rapid migration and the EU - but we know little about the idea of England than lies behind these polls. There’s almost certainly more than one: the England of Stoke Central imaginations may not be identical to the Twickenham RFU car park on international day.

One of the most persistent and perceptive observers of alienated working class voters sheds some light on why these voters are turning towards their English roots. According to The Guardian’s John Harris:

"When a lot of people said ‘I’m English’, they often meant something like, ‘I’m not middle class, and I don’t want to be…. I’m also white, and coupled with the fact that I’m working class, I feel that somehow that puts me at the bottom of the heap, not least in the context of immigration. But I am who I am, and I’m not apologising for it.'" People who said "I’m English" seemed to be saying, 'I’m from somewhere' in a ways that politicians and the media did not."

Given Labour’s history in seats where support is ebbing away, it’s reasonable to think that the party’s target must be the voters who Martin Baxter of Electoral Calculus describes as "left-wing nationalists". In this definition, "left-wing" attitudes tend to be be anti-capitalist, hostile to business, generous on benefits, support the welfare state and redistributive taxation. "Nationalist" attitudes are seen as isolationist, against immigration, disliking EU freedom of movement, thinking British means "born here" and that Britons should be put first.

For many in Labour, those nationalist attitudes might bring "a basket of deplorables" to mind.  In recent days both the Corbyn left, and centrist MPs like Alison McGovern and Wes Streeting, have warned against meeting these voters’ concerns. Progressive Labour populists must also calm those fears. But Labour will be doomed as a party of government it it can’t reach these voters (even if it does hang on in the forthcoming by-elections). The obstacles are formidable, but with the right language and framing, Labour may find an appeal that could cut through without alienating the party's more liberal support.

Just acknowledging that England, and the English, exist would be a start. The reaction to Birmingham mayoral candidate Sion Simon’s appeal to England in a campaign tweet simply emphasised how much of Labour prefers to say Britain, even when they mean England. We don’t need a swirl of St George crosses at every event; we just need to use the word in normal everyday conversation. At least we would sound like we live in the same country.

The defiant cry to be recognised and heard should trigger another Labour instinct. The demand that the nation should be run in the common interests of the people runs deep through radical history. Jeremy Corbyn reached for this with his talk of "elites rigging the system". But no ordinary English conversation ever talks about elites. Instead of "mini-me Trumpism", English Labour populism needs careful framing in the language of day-to-day talk. Labour's target should be not be the wealthy per se, but those powerful people whose behaviour undermines the national interest and by doing so undermines the rest of us.

This language of national interest, both conservatively patriotic and politically radical, meets the mood of the moment. The select committee challenges to Amazon, Google, Philip Green and Mike Ashley struck a chord precisely because they revealed something deeply true and unpleasant about this land. We can defend the national interest without invoking a racist response. Why are our railways sold to other governments, and our companies sold abroad for quick profit? Why should it be easier for a foreign gangster to buy a house in Surrey, and hide their ownership overseas, than for an English family to get their own home?

By asking what any change means to the people of England, we might bridge the divide on immigration. If the impact of migration is exacerbated by the pressure on housing and service, let Labour make it clear that the rate of immigration should not exceed the pace we can build homes for those already here, as well as any newcomers. The government must be able to expand services to meet additional needs. If every policy should work in the interests of the people of England, migration which improves our services, creates jobs and grows the economy is to be welcomed. It is hard to see a genuine liberal objection to posing the migration challenge in that way. With the exception of refugees, immigration policy cannot be designed to benefit the migrant more than the resident.

Let the test of every policy be whether it works in the interests of the people of England, or works only for a few. That’s a simple test that would appeal to widely shared values. It could be the foundation of a genuine Labour populism that speaks to England.

 

John Denham was a Labour MP from 1992 to 2015, and a Secretary of State 2007 to 2010. He is Director of the Centre for English Identity and Politics at Winchester University