A DISCUSSION OF LAW AND JOURNALISM

The Mighty “I” in iTunes

iPod

By Pamela Schwartz

So you’ve kicked the bucket; this is unfortunate not only because you’re dead but because it would sure be a shame to let your stellar iTunes collection go to waste. Would it have been possible to bequeath your digital library to your grieving friends and family?

As this article in the Wall Street Journal pointed out, some of your digital treasures could be passed on by your starting a trust or storing your password for your loved ones. But when it comes to iTunes, when you’re dead, so is your collection.  This is because of the iTunes user terms of service, which makes the trust or password-sharing illegal.

We’re here to tell you why, and what could be done about it in the future.

When you buy music or eBooks off iTunes you’re effectively the owner of said music or eBooks, right? Wrong. Consumers don’t actually own purchases from these companies – they have a license to use them as stipulated in the user terms of service. This means that what you’re paying for is your exclusive right to use the content, not the actual property rights. And, since it is a “non-transferable” license, only the purchaser is authorized to use the files.

So, thanks, Wall Street Journal, but giving someone access to your iTunes account via your password would violate its terms of service. Apple could then discontinue the use of its licensed products, leaving the heir to your iTunes fortune with a barren device. In fact, since sharing a password violates the iTunes Commandments, if Apple found out, you could be left with the barren device while you were still very much alive.

Of course, Apple would have to spend a lot of time and money pinpointing deceased users and the continued use of their digital stuff, so you’d get away with it, most likely. But from a legal perspective, the terms of service say, explicitly, “Don’t reveal your Account information to anyone else.” Not much wiggle room there.

And putting your Tunes on a CD and leaving it in your will may land your CD beneficiary in a legal battle because, again, the license allows the initial purchaser to use those files, but not to transfer or give them to someone else.

Creating a legal trust to hold your digital media, as a U.K. paper falsely reported Bruce Willis tried to do, might be possible but its success is far from guaranteed. Again, this would be an example of trying to transfer what is supposed to be non-transferable.

Still, some attorneys are boldly venturing where no man has gone before, by creating and selling legal software to help establish trusts for digital files, including iTunes products. One company claims to do so without violating license terms and without potential liability to beneficiaries. But as they don’t disclose how they’re able to do this, it’s caveat emptor, I suppose.

If you’re thinking it’s rather unfair that you can buy and resell your books and CDs but you can’t do the same with your digital media, I’m with you.  But that’s the law.

But under the laws of copyright, tangible items that are legally purchased may be resold without obtaining the copyright owner’s permission. This is known as the first sale doctrine, which was enacted to limit a copyright owner’s exclusive right to distribute. This doctrine is what allows libraries, second-hand bookstores and even eBay to exist, and was the government’s way of balancing a copyright owner’s distribution right with the public’s right to access information.

Here’s a history lesson for you digital music junkies:  People are allowed to resell lawfully obtained items, but only that particular copy of those items. In other words, if you bought a CD and wanted to resell it, you were golden. If you made a copy of that CD and wanted to sell the copy, not so much.

Apple was able to avoid the first sale doctrine by convincing copyright owners to issue licenses to copyrighted works rather than ownership rights. A great move by them, less attractive to those of us who were taught to “share and share alike.”

The only hope that you’ll be able to bequeath your Tunes lies with a combination of advances in technology and legislative means.

Legislation has been tried before, and failed.  In 1997 Congress proposed the Digital Era Copyright Enhancement Act , which sought to make license terms that were non-negotiable unenforceable and to extend the first sale doctrine to digital files. The Act was not passed but the idea of extending the first sale doctrine to digital media lives on.

The American Library Association supports amending the first sale doctrine to include right of access to a copyrighted work as well as selling or disposing of a right of access without the authority of the copyright owner. This statutory change would allow people to resell access to their iTunes, or to transfer their electronic media upon the death of the purchaser. And through software, copyright owners would be able to manage the number of authorized works available.

Just think:  You would be able to meet your maker, knowing that the great-grandchildren of your great-grandchildren would be rocking to The Grateful Dead or Flying Lotus, or even, if you’re my eccentric friend Liz’s descendants, to Hanson.

Meantime, your best bet would be to take those antioxidants and live long enough to see legislative and technical advances that will allow you share your iTunes from the hereafter.

Comments

2 Comments »

2 Responses

  1. Jennifer G says:

    Great explanation, and interesting read. I love this blog’s stuff!

    – 1L at competing New York school

  2. Steven says:

    My two older brothers have my iTunes password and I have theirs. We share our music so it makes sense. We’ve discussed one day having kids and having them have access to our music collection. But I’m only 22 so maybe the issue will be sorted out by the time I have kids. Not for another 8 years at least. ha ha.

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