Who Owns That MP3? Rights & Ownership In The Digital Era

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mp3 ownershipThis is pretty new ground – what happens to your legally purchased MP3 collection when you die? When one of the least trustworthy British newspapers around – The Daily Mail – reported that Bruce Willis was going to sue Apple because he couldn’t bequeth his digital music collection, the Internet at large jumped at the chance to spew their vitriolic Apple hate. The story was completely false of course – but it raised an important question worth considering – who does own that MP3?

The story goes that Bruce was considering his final hour and how his estate should be divided up among his daughter; notably, his massive iTunes-purchased music collection. He was angry that the terms and conditions apparently stated he was only “borrowing” the music, and had decided to sue Apple for the rights to pass on that collection.

Is It “Borrowing”?

The legalese of iTunes states that purchasing music is a non-transferable licence – you are limited to personal use only, on up to 5 devices. Apple also offers iTunes Plus for a small extra fee, which removes the DRM, gives you higher quality, and let’s you burn them to CD as many times as you like. Of course this isn’t a free pass for piracy, but it is DRM-less.

And let’s not forget iTunes Match, which for an annual fee gives you unlimited matching of your downloads from a database of high quality versions.

mp3 ownership

It’s Not Just Apple, & It’s Not Just Music

Cue the Apple haters, a particular spiteful bunch who were quick to extoll the virtues of not using awful iTunes and instead swearing by the competiting Google and Amazon music products. The original CNN story now has 500 plus such comments.

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mp3 ownership

Only – it’s not just Apple – both Amazon and Google have a similar licence which prevents you from transfering ownership of any digital content to another account. Gaming platforms such as Steam have similar clauses. It’s not even just music, it’s everything.

Is Ownership An Illusion?

Ultimately though, the argument focuses on whether or not you own the music you download from iTunes. But you never really owned the music on a CD though, did you? You owned the physical disc that it was replicated on and could pass that around as you wish; but you certainly couldn’t go around selling copies of it, and what happens if the CD gets destroyed, or scratched? Do they give you a new one, for free? No.

With digital files, you typically get unlimited downloads of a song onto all your devices, even if that is with obligatory DRM. If you delete one, or your computer or iPod gets stolen – no worries –  you can simply download it again, at no cost.

My point is, these formats are different and necessarily require a different set of rules; but it’s not like you’re getting screwed over by an inferior product, so let’s stop seeing this as such as one sided debate.

Transfering Ownership

So why don’t we just have a system for transfering ownership? The answer seems kind of obvious though: in a world where making copies is simple, what is stop people from gaming the system, by selling theirs and then making a copy? What is to stop a second hand reseller from acquiring these, and taking a large share of profits? The gaming industry isn’t happy with this situation, and the next consoles will likely be download only, so why would music be any different?

The funny thing is this: the pirates won’t have this issue – they’ll just hand down their hard drives, packed full of DRM-free pirated music, and no one will care.

Of course I don’t have an answer; it may be that non-transferable is the final word when it comes to digital media. There’s no legal precendent yet – so the questions remains who’s going to die first, and will they be able to hand down their digital media? The world awaits an answer.

I would ask “what do you think, should digital media be transferable?”, but the answers are too predictable. Instead, let’s ask – what are the arguments for not allowing digital media to be transferable? Is it all down to profits? Or is there a fundamental difference in the fact that it’s digital? Do the benefits of digital media (free replacements to damaged copies, ability to have it on multiple devices at the same time), outweigh the disadvantage or not being able to resell, lend or give them away?

Image credit: DefectiveByDesign.org

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Comments (29)
  • Fabrice

    This is a very good article.

    The most important part of the article is : “Bruce Willis went on iTunes and bought (movies, music or) his own music / movies”.
    Therefore, Bruce Willis gave money and power to a system that dematerializes creations like music, films, etc. He agreed (through the EULA) and encouraged his own transformation from being an actor who sells DVDs to people, to being an actor who sells artworks that have no physical support.
    It’s a choice that he made. Another choice would have been that Bruce Willis gets a really good VHS player, a DVD player and a CD player, and he would have been able to buy all his film collection, and all his music back for a few hundred dollars, that he would then have been able to pass or share as much as he wants (some CDs cost 0,01$ on amazon, come on!)
    But the problem for Bruce Willis is, that by buying his tunes on iTunes, he’s destroying the very system that created him.

    Me, I’m a filmmaker. Not professional, it’s my side activity.
    I make short films that are science-fiction / fantasy / action, stuff blows up too in my movies. I write the music myself too. And (after they ran through a couple festivals), I put them online for FREE. On Vimeo, on YouTube, you name it.
    Free for the people.
    Because I want my films to be seen. That’s my goal. If I can make money along the way, great! But if I can’t – I still want them to be seen by a lot of people.
    And this puts me on the very same level as Bruce Willis – no kidding! We both make content accessible on the internet.
    The only difference, besides from the quality of my films, the recognition, is really the money. It’s how much I, myself, cost, how much it costs me to make my films (not too much money), and how much I lose if someone downloads my film from YouTube and puts it on his phone to watch it in the metro (not that much either, since it’s my goal).

    And the thing about internet, is that it levels people. If you’re looking for a flat, or for a job, it lines up options and lets you chose from them. If you’re looking for a film to watch, music to listen to, books to read, the internet lines up options for you. Free options. Paid options. Even within the app store! And people will go to the free ones more and more, and more, and more, because they’re legal and come from people motivated by their art.

    Dematerializing Bruce Willis.
    The leveling can be done two ways : either Bruce Willis gets paid less to be an actor, and the star system as we know it will slowly disappear (ooh many people have shivers with that one!), or every and any filmmaker on earth (and musician, photographer, writer…) who puts his works online gets paid good sums of money for each clic, each download, inside a system that rewards them for contributing creativity. Then as a result, all the digital content that is online would (and maybe should?) cost money to be watched / heard, would be non-transferable, etc. And people with tomorrow’s fame are people with the most downloads, not necessarily people whose work cost lots of money to produce. This system is yet to invent, and believe me I have tried a lot of them.

    Both options can now begin happening. Yes, people will download Bruce Willis movies because he is a “transitional” actor, from back when there was no internets. But people also will watch funny videos online and beautiful films and music made by non-professionals.
    The more illegal downloading will be enforced, and the more Apple (and friends) will restrain the passing on of creative works you didn’t author (which I think really started existing in people’s minds with the audio tape, and with the “Betamax case” in 1984), the more people will turn towards free sources of entertainment. What I really think will happen is option 1; the end of the star system. You will still be able to make a living being a filmmaker, musician or an actor, but it will work differently.
    The “Betamax case” (it has a page on Wikipedia) is really something that, I’m sure, gives Bruce Willis a double-sided opinion in the light of present technology. Yes, Bruce, you can decide to come back to VHSs, but people will lend each other your films, without paying for them every time. CDs are the same. Pirating isn’t much different.
    In a way, using a cassette walkman or a Minidisc player/recorder today is kind of being ahead of times. Legally. While looking backwards at the same time. Heh.

    The second important thing in the article is that Bruce Willis is ill, and no one seemed to pick that up.

  • Marc Moran

    Music should be open to everyone.

  • druv vb

    I always thought that DRM meant Digitally Restricted Media. And getting them on several devices meant dealing with various problems. That is if I have a DRM music file, and I want to share it with my father and brother, I simply can’t. They will have to buy their own copy. Damn, I would listen to the radio then…
    Does DRM apply to our local radio broadcast services too?
    The thing about DRM licences not transferable will surely make people look for more pirated media to share.

  • eltioska

    What I find worrying is the whole patent and copyright manipulation by the big guns in the industry and supported by governments and courtrooms.

    I mean, it’s true that musicians, authors, etc should be paid for their work, BUT:

    How much do the artists actually get? In a way, with the tiny percentage that they’re given in royalties, legally buying music can be considered voting for slave-driving by your cash. (This is not necessarily an argument in favour of piracy; however it is an argument in favour of buying from artists who publish independently, rather than those who suck up to the huge coporations.) That’s why Amazon´s self-publishing option on Kindles is interesting – authors get an almost-decent 40% cut (or something of the sort) as opposed to traditional publishers who give the authors anywhere south of 15%. As far as I’m concerned I’d want to pay (almost) *everything* to the artist. I wouldn’t mind the company taking a 10-15% cut in commission (I consider Apple’s developer-tax of 30% excessive) for providing a platform, in but the current situation the people who actually create the content are the ones who receive the least.

    The current fines imposed by US courts are simply ridiculous. Up to $150 000 per track uploaded? That’s simply ludicrous. I can understand that they want to deter illegal file-sharing, but which company can really claim that they suffered so much income loss from a single mp3 that a single user uploaded? No-one, that´s who.

    I’ll stop my rant here coz I don’t want my comment to be unreadable :o)

    Great article James. Good food for thought, looking forward to see other opinions!

    • lem

      Eltioska, you have highlighted what the real issue is. Hopefully, one day, we’ll be able to buy direct from artists

  • lem

    ‘and what happens if the CD gets destroyed, or scratched? Do they give you a new one, for free? No’

    True, but I also dont have to buy a CD player from the same record company in order to play my other CD’s.
    iTunes/Apple is impossible to legally turn your back on. If Apples products should greatly decrease in quality in the future, and people need a new ipod/ipad/iphone to play there collection on, then the trouble will start.

    • Prashanth

      I totally agree with lem. I am ok apple having the rights to the music in terms of DRM. But there should be at least a way to play the music we buy on one store with the player that’s more convenient for us.
      Personally, I hate iTunes. I love foobar. There should be an arrangement or at least flexibility for playing the music elsewhere if you buy music on one device.

    • muotechguy

      iTunes had had DRM free option for a
      Long time now, that’s really not a valid excuse anymore.

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