People Want to Own Their Music
By Charles Miller
Today’s column is scheduled to be in print for Halloween, or Día de los Muertos (Day of the Dead). Día de los Muertos fills Mexico abundantly with images related to death, not something to be feared, but a celebration of the lives of those who have passed on. A visit to the cemetery will find many gravesites colorfully decorated with flowers and keepsakes recalling the lives of the departed. For the dearly departed who was a part of the Internet age, the 21st century has now added something new that some of us might want to consider.
When the late Steve Jobs went online with Apple iTunes in 2003, he did so in direct opposition to calls from the music industry that favored a subscription-based model rather than a sales-based model. Jobs said, “People want to own their music.” iTunes proved wildly popular as millions of customers “bought” music and videos because Apple recognized their customers had no interest in “renting” digital content and paying for it over and over and over again every time they played it.
So, for more than a decade now, all the customers of iTunes and other online vendors have been taking advantage of the ability to “purchase” and download music and videos online. Very few of them have thought to ask, “Who owns my digital downloads?” Here is a hint: it’s NOT you.
When you pay to download a digital music track, an entire album, or a video from iTunes or one of its competitors, you get a limited set of rights and you most assuredly do not own what you have downloaded. What you bought is a lifetime license to play that digital content, and that license comes with an extremely limited set of rights.
While the digital content you download might be exactly the same as that on a CD or DVD bought at a store, downloading that same music or video online is different. It’s not the same in practice, and it’s not the same legally.
In the United States, Section 109 of the Copyright Act gives you very specific rights under the first-sale doctrine. When you purchase a lawfully made CD, book, or DVD, you can lend, sell, or give it away without having to get permission from the copyright owner. But now comes an important difference between a song you downloaded from iTunes and the exact same song bought on a CD. The first-sale doctrine only applies to tangible goods, such as the plastic disk from a store. The U.S. Supreme Court is hearing a case during the current term that may impact the first-sale doctrine in the United States.
As things stand now, if you download a music album from an online service such as Amazon, eMusic, or iTunes, rather than buying the CD at a store, your rights are different. If you downloaded, you have no legal right to resell, lend, or even give away that album. You can legally do any of those things with the plastic CD.
So why bring up this subject on Day of the Dead? If you read down through the 14,000 words of dense legalese of the terms and conditions for the iTunes Store, you will find that the contract you entered into when you clicked on “I Agree” says that your music is yours to use and enjoy only for your lifetime. The use of the terms “personal use” and “non-transferable right” defines that what you pay for and download to your computer is not something you can pass on to your heirs in the same way you could pass on your collection of CDs and DVDs. When you expire, so too do your iTunes usage rights.
So, if while visiting the cemetery on Día de los Muertos you happen to hear the festive sounds of recorded music, remember that Steve Jobs got it right. “People want to own their music.”