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

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featured drm   Who Owns That MP3? Rights & Ownership In The Digital EraThis 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.

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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.

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

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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29 Comments - Write a Comment

Reply

Coyote

I don’t know how we got on the whole idea that music was something to be “owned” in the first place. Before records, CDs, or the MP3 we had to hear it live. Performed by artists that heard the songs themselves, passed from generation to generation. And by the nature of that it was different every time, singers, instruments, the culture in which it’s being performed. Songs weren’t something you collected they were songs of history and tales from far off lands, they were information. I dare say it was a much better time for music back then, more creativity flowed from those 1000’s of years that it became the structure for our very methods of communication. Now what do we have to show? Is any of it worth passing on at all?

OblongCircles

I am confused by your posting. Times have changed, mentalities need to also change. To address your question about what we now have to show for it…We now have music, documentaries, ebooks and other “story-telling” media stored in high-quality, digital format that can be shared and stored for the foreseeable future (barring any major apocalypse that renders power and/or digital media obsolete). This media is no longer subject to the level of variation (both intentional and non-intentional) that the storeis and songs pasted down from our ancestors were subjected to. Wars, religion, cultural changes and dare-I-say the evolution of communication have all had their imprint on the information available to the masses. Just look at the multiple iterations and varieties of the Bible for example. As for the question about the worthiness of passing this information along, ask yourself this, is it worth passing along stories about yourself and your ancestors down to your children and them to their children? What is it worth – priceless. I think it speaks more to the collective knowledge and advancement of the human population as well as the lessons learned and creative spirit of our species. A billion years from now your playlist could be found and perused to offer some insight into the times you lived in and what appealed to you as an individual and a representative of our species.

Reply

Bumferry

I was quite intrigued by the whole transferable ownership thing and always thought I should OWN THE RIGHT USE THE TRACKS for personal use however i saw fit (multiple mp3 players i-pods etc) rather than the music itself. But when put together with the “do they send you a free CD if it breaks?” comment – I have to say that I have now changed my mind
!
When arguing along the same lines as owning a physical CD, its quite true and RIGHT that nobody would expect the music company to send a complimentary copy. So why should i-tunes and the like do the same?

Thanks for a cracking article – one of the very rare times I have have my opinion totally changed! brilliant.

I still think John McLane should scurry through the air ducts in Apple tower just for kicks though! “We’ll get together…have a few laughs!”

James Bruce

;) Glad you enjoyed it.

Ryan Wise

However if i understand correctly you were legally allowed to make copies of that CD or rip it to a computer for PERSONAL USE, have one for the car, home stereo laptop etc.
I think a better analogy to braking a cd would be permanently deleting your itunes account (is this even possible? im strictly winamp a person and stay as far away from itunes as possible) and then opening a new one and expecting apple to allow you to redownload all the songs you have previously purchased.

What are the laws regarding other forms of artwork?? For example if i go and buy the original painting of the mona lisa do i then get to print copies and sell them as i see fit without giving any form of loyalties to the original painter? I suppose it come down to the terms and conditions set out when your purchase the item

Muo TechGuy

Legally you’re allowed, but a lot of CDs were sold with copy protection that prevented them being ripped on Windows.

Good questions though. The Mona Lisa is out of copyright AFAIK – anyone can sell a print of it if they have a high enough resolution scan. Otherwise, the copyrights fall to the estate if the artist is deceased but not yet out of copyright. Owning the original of a piece of art doesn’t give you reproduction rights, nor does purchasing reproduction rights necessarily give you the original too. As you say, it would be arranged at the time of purchase in the contract with whomever holds the copyright.

OblongCircles

Why shouldn’t they do the same? The CD-purchase argument is flawed in that A. It’s not a CD we’re talking about
B. Nothing is being sent so no associated costs involved with basically refreshing the user’s account. The data is already stored on their server and assigned to your user account so what’s the problem? The process doesn’t even require human interaction (meaning no labor costs)

Maybe, from the provider’s perspective, to help cover their negligible storage costs and infrastructure costs – they could charge a perpetual license fee or some such so users could ALWAYS have access to the purchased media.

Better yet, I should start a company to provide that exact service, store your purchased media with me as a 3rd party entity so users are NOT bound to Apple, Amazon or whoever they originally purchased it from. Hmmm…

Reply

Alex Perkins

People wonder why piracy is so high now, if only one person is allowed the content they paid for its unfair that if they want to give it to someone else the other person has to buy a licence. That’s like buying a house, then when you die it can’t be handed down the family.

James Bruce

That’s an interesting analogy actually Alex, because in Japan the inheritance is so great that you basically can’t pass down a house; you’d have to pay about 50% of the value in tax, which most people can’t, of course.

Coyote

We have the same thing in the US. It’s called the death tax (or estate tax) and can ruin some previously wealthy families if a elderly loved one didn’t prepare their finances years in advance. Ours goes up to 55% of gross value, but alot of red tape and legalese probably allows a way out for those that know.

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Terry

Ownership, where we are going we don’t need ownership. Why would I want to fill a large chunk of my hard drive with music sitting in cold storage just so I can kind-of own it? Services like Spotify where you can stream music to your hearts content for a reasonable fee can totally replace the concept of ownership. With the Spotify app on my phone and computer I have a music collection that is simply too large to fit if I were going to try and possess it.

James Bruce

Meh, but then you need an always on connection. 3G is still spotty even in the UK on 3 Network, which has the best coverage of all.

Oliver

Ive stopped downloading music, legally or illegally, exactly because of Spotify. Whenever I’m at home or anywhere else with wifi, Ivan listen to almost all music ever produced. When I’m out, since I do t have mobile internet at the moment, I just listen to the offline playlist I’ve saved to my phone.

Rich

..what happens if you were travelling (let’s say Africa, or parts of Asia) where there is no wifi, or you were on a plane and you wanted to listen to music then? How much use is spotify then?

There has to be an advantage somewhere along the line to “physically” (Albeit potentially in digital form) having the property….

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susendeep dutta

It only concludes that the industry’s aim is to gain profit and they don’t bother about user.Money is bigger than anything else.

OblongCircles

because the industry should do everything for free? of course they are in business for profit, why else would you have a business? if you believe everything in life (especially products & services) should be free, open up shop, I will be the 1st to sign up for all of your free stuff that you will spend real money and time setting up, maintaining, updating, troubleshooting, supporting, etc. You must be of the younger unjustified-entitlement generation where earning or working for something is an alien thought process.

Maybe gasoline should be free since we already paid for it. Maybe homes should be free since we only live in them until we die or move.

Reply

Tareq

Well for me i really dont care i download everything illegally music,games,software everything digital 1.’cause i cant afford it 2.you “borrow” what you buy ? no f**k that :) i’ll stick to thepiratebay :D and that’s a really great article buddy :)

Juan Carlos Espinosa Agudelo

I’m no one to say that what you’re doing is bad(I’ve downloaded some stuff without payment as well and even some politicians have), but ”cause i cant afford it’ kind of contradict you being here. Since you obviously have paid for a PC($100 – 1000+) and internet($10 – 200+), where an album costs around $20 or less. And yes, I’m talking about CDs, from which you can take the songs in the quality you want(not the bad quality you sometimes find on TPB).

I never really used iTunes, so I can’t have a good opinion on it :)

James Bruce

I don’t know, I think there is some merit to the “can’t afford it” argument, or at least – less dispoable income. I used to pirate mountains of stuff, because I wasn’t paid that much and could just about cover the bills. Nowadays, I do well. Well enough that I’m happy to pay for netflix, for itunes download and icloud, and itunes match, and apps and everything. For me, it’s about time vs money. Pirating has always been the more time consuming approach: finding the right file, actually downloading it, unpacking it, figuring out how to play it. Put simply, my time is worth more to me than money now – that’s the key difference. When you don’t have enough money, your money is worth more than your time.

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Subhom Mitra

Methinks the possibility for piracy maybe the foremost reason for this lack of transferability. For example, someone buys music and then shares it freely. He’s guilty of distribution but he does OWN the music (or atleast the copy of the song/piece) that he’s distributing. If it’s transferable and the transferee distributes it then they aren’t the original owners of the content. Although this certainly won’t deter pirates (as you pointed out, they’ll just hand down their HDDs packed with DRM-free music) this might be a small legal tripwire the companies might expect to exploit. On they other hand, as iTunes really made music (relatively and perspectively) inexpensive and for the first time, made it possible to buy individual tracks (at the same price), maybe they just want to keep the customers coming, underscoring the fact that the music that they want to be handed down to them free of cost is really dirt cheap and not worth fighting and bickering over. But that’s just me, God knows what Apple will make of this “not-worth-fighting-over” policy of mine, as their current motto seems to be “iSue” http://www.makeuseof.com/tech-fun/apple-sues-everething/

Reply

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

Brilliant!
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.

Reply

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

Reply

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.

Reply

Marc Moran

Music should be open to everyone.

Reply

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.

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

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