Op-Ed: iTunes vs. consumers? Who owns what when you buy a download?
Bruce Willis is looking at legal action against Apple over a dispute regarding his digital music collection. Under the terms of the iTunes license, purchases are “borrowed”.
This case could have a major effect on music sales and other kinds of purchase of digital rights under license.
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 license. 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.
That blurry definition is actually about file sharing. It’s a very broad definition of the general range of “passing on to others” which not at all accidentally covers the types of cases for which ARIA has been suing consumers, usually the poor ones for sharing music files. The general range of licensing agreements is pretty much the same, and simply means “don’t bootleg the stuff you buy from us” in practical terms. It gives online retailers and music distributors some legal recourse in those cases.
It’s very unlikely the idea of leaving digital music to people in wills was on the radar when these terms were invented. The terms of the license are clearly out of whack with the normal usage of a purchased media product in that regard.
The trouble is that this situation also raises another issue, and it’s a big one- What rights do consumers have to the music they purchase? There are inequalities here. There’s also a beat-up of a situation which could be managed a lot better.
In the days of hard copy music, purchases were a lot more straightforward. You bought your record or CD, and you weren’t supposed to copy it and sell it. If you did, you were clearly infringing the rights of everyone involved in the production and distribution of those products. There was a gigantic trade in bootleg records and CDs until digital came along.
The “digital revolution” has been anything but a revolution in that respect. The only real way to stop people “borrowing” music is to make it unplayable. If it can be played it can be copied.
This is where things start getting ridiculous:
1. Apple actually provides a Rip and Burn function on its iTunes player. This is a copy factory, built in to the software. A very minor bit of re-engineering could turn an iTunes player into a factory. Forget DRM, (digital rights management) because with any musical media there are endless ways around it.
2. The average home computer is perfectly capable of turning itself into a bootleg factory. You’d need almost no technical knowledge at all to do that. The miracle is that more people don’t.
3. Antagonizing music lovers is historically a very bad option. The main reason people buy from major commercial outlets is because things are easy to find and buy. Start making things difficult and annoying, and they’ll go looking for alternatives. They’ll find them, too.
4. Hardcopy, which is the preferred source of illegal copies, is owned, but software isn’t? Is that viable? No. How could it be?
5. Basic law covers the provisions of licenses purchased by consumers, anyway. If you copy the product you purchase, you might be infringing someone’s legitimate rights. That applies to anything you buy, whether it’s a Beatles album, Adobe software or a toaster.
6. The basics of copyright laws also cover these areas. It’s a no-brainer. Copy-right. The right to copy. Simple enough, you’d think.
It’s a matter of opinion whether licensing is at all appropriate for consumer purchasing of anything. Licensing, in its original form, was more a sales-based legal option for producers and distributors.
The more obscure, but very important, area at issue is ownership. Are consumers paying for “borrowing” a product? Because if they are, it’s not a sale. It’s a rental. That means that many people have effectively been misled over the ownership of billions of dollars’ worth of materials. The licensing agreement may say or imply otherwise, but in practice, those people think they own those downloads.
Can Apple claim ownership of songs purchased on iTunes? No. They are distributors. They don’t own the songs. They own the rights to distribute, non-exclusively, to consumers. The license defines terms of purchase. Can they reclaim downloads? No. It’s not on the licensing agreement.
The songs, therefore, become property in some forms, and property rights apply. If you buy a product, you have rights. Those rights aren’t well laid out in terms of purchasing music online.
Property rights may also apply simply because the purchaser has the physical possession of the product and has paid for it, which not very surprisingly also happens to be basic law related to commercial sales. This is a very messy set of definitions.
Expecting the dead to turn in their downloads may also have a few problems attached to it, too. Are executors supposed to provide a copy of the death certificate and hold a séance to get the password to send back the downloads? Should downloads be covered by probate? Willis may be dying harder than he thinks, here.
The best shot on the board here is to clean up this mess. Apple and the other music retailers should take the long view- The idea that a CD is property and the same materials as downloads are not property can’t stand any scrutiny at all. It’s as absurd as it is unworkable and unenforceable.
ARIA should look at basics. It is physically impossible to avoid copying of any musical product. The risk they’re running is a risk they’ve created for themselves. If people can’t buy music from retailers without a law degree, they’re likely to take matters into their own hands. Think bit torrents and mobiles, and you’re looking at a musical Vietnam.
Willis has raised all the right questions. Let’s see if there are any right answers around.