You may think you know what happens to your music collection when you finally go to the big cloud in the sky — but if you purchased that music digitally, the answer is way more complicated than where your sofa will end up.
Digital media ownership is different. There are decided benefits to the shift from physical ownership — like the ease of sharing and discovering new music, and the ability to carry an impossible amount of it with you everywhere you go — but also drawbacks.
Understanding what your beneficiaries can lawfully do with your digital assets after you make your final upload might make you appreciate even “obsolete” CDs for advantages beyond audio quality.
Bear with us for a moment, because we’re in for some legal jargon. Also, we are legally required to say that we are not lawyers and this does not constitute legal advice.
First, you should know about a limitation in copyright law called the “first sale doctrine,” because it weighs in your favor, should you try to put digital music in your will. Highlighted above, it limits how much a copyright owner can control a work after it’s sold.
This is where common law meets common sense. While most would agree the owner of a copyrighted track should have the right to release it first (this is why pre-release ‘leaks’ to P2P networks are such a hot issue), few would assume that the original owner of any product should have the right to oversee every time it changes hands.
“First sale” makes it abundantly clear that owners can and should protect their right to profit from their work, but that once a copy is sold, the purchaser can do what they will with it. This legal interpretation allows for loaning, reselling, and giving away used CDs, LPs, and books, and it’s important in the context of digital vs. physical copies of music. Why? Because copyright enforcers frequently claim that not paying for an MP3 is equivalent to “stealing” a physical good like a CD — and yet at the same time, they’ve convinced retailers such as Apple and Amazon not to recognize the same ownership rights for digital goods.
This may come as a shock, but it shouldn’t — in part, because it’s hard to give away a CD and keep it (although not that hard, really, with a CD-R). But if you think you’ve actually bought any music from either of these retailers, you haven’t. If you think that you actually own anything you’ve paid for, you don’t.
What you have done is bought somewhere between a few and a $%!#-ton of licenses, much the same way you might purchase a license to use a computer program. Unless the retailer decides to revoke your license for some reason, the license has no defined length or “term.” Well, except your term; that is to say, the license expires when you do.
Even while still vertical and breathing, you can’t legitimately sell your iTunes acquisitions when you’re tired of them, the way you may have cleaned house at your local record store around the age you stopped using hair gel. This is a right that should be granted to you under section 109 of U.S. Copyright law (above), if we consider an MP3 a “phonorecord,” as legally defined below.
That sure sounds like an MP3 to me. If you doubt that a digital file can be considered a “material object,” know that the Supreme Court case Advanced Computer Services v. MAI ruled that even electrical impulses generated by a software program in RAM are sufficiently permanent to be considered “material.” Whoa.
But the iTunes user agreement effectively removes those legal rights the second you agree to the user agreement. iTunes does this by limiting your rights to copy, store, or burn a CD of music to personal, non-commercial use.
Why wouldn’t Apple block these actions entirely, rather than just limiting them? Because Apple needs to recognize the defense of “space-shifting” (copying legally-acquired media to another medium,) as it’s one of the primary reasons it is able to sell iPods as non-infringing devices. (The exclusive right to make copies — as in from a computer to an iPod — is the very foundation of all copyright law.) Amazon puts these limitations in even plainer terms, expressly prohibiting even actions as seemingly innocent as “sharing” or “lending.”
This licensing limitation has nothing to do with Digital Rights Management (DRM), very little to do with your rights under copyright law, and everything to do with the relationship between digital music retailers and copyright holders.
With Apple iCloud, you’ll be fortunate enough to be able to pay to almost own your own “CDs” on a distant server somewhere. It seems like a point of technicality, but it was and should still be your right to own your music purchases, and to use them to the full extent of the law, regardless of the medium they’re housed on. That used to include deeding them to your heirs, but no longer.
Lets face it: If you really want to give your music away, it’s easier with digital from a practical standpoint than it was with physical formats. But the fact that retailers like iTunes and Amazon can effectively retain control of the products you buy even after you’ve paid for them — even as copyright law seeks to prevent them from doing so –unsettles me, especially because Steve Jobs claims to have built his iTunes model around people wanting to “own” their music.
So if you’ve been hoping to acquire a goldmine of free music when grandpa’s sizable MP3 collection comes up for grabs, or if you were planning to bequeath your iTunes purchases to a nephew, know that while no one will likely stop you, you have no right to do either of those things.
To date, there hasn’t been a single case (that we know of) where Apple, Amazon, or the RIAA took some poor shmoe to court over scavenging grandpa’s MP3s. And the industry has probably suffered too much embarrassment from suing single mothers and 13-year-olds to start down that road.
But the body of law that governs digital music is still relatively new. This type of awkward licensing situation has yet to rear its ugly head on a large scale, because we’re arguably still in the first generation of digital music fans.
In other words, this is largely a theoretical problem now, but it won’t be in the future.
Photo courtesy of Flickr/nathanborror