Who owns your digital downloads? (Hint: it's not you)

Who owns your digital downloads? (Hint: it's not you)

Summary: Steve Jobs once said, "People want to own their music." Someone better tell the folks who run the iTunes Store and its competitors. When you pay for a digital music track or album from an online service, you get a limited set of rights and you most assuredly don't own those downloads. Here's why that matters.

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TOPICS: Mobility, Apple, Hardware
232

Steve Jobs once said, "People want to own their music."

Someone better tell the folks who run the iTunes Store and its competitors. If you buy a digital music track or album from the iTunes store or one of its competitors, you don't own it. Instead, you're buying a license to play that track or album, and that license comes with an extremely limited set of rights.

Why does it matter? If you buy a CD in the United States, Section 109 of the Copyright Act gives you very specific rights under the first-sale doctrine. Fred von Lohmann of the Electronic Frontier Foundation explains those rights:

[O]nce you've acquired a lawfully-made CD or book or DVD, you can lend, sell, or give it away without having to get permission from the copyright owner. In simpler terms, "you bought it, you own it" (and because first sale also applies to gifts, "they gave it to you, you own it" is also true).

But the first-sale doctrine only applies to tangible goods, such as CDs. Digital music downloads (just like movies and TV shows and books) come with a completely different, much more limited set of rights. If you buy a digital album from an online service such as the iTunes store, Amazon MP3, or eMusic, you have no legal right to lend that album to a friend, as you could if you had purchased a CD. If you decide after a few listens that you hate the album, well, tough. You can't resell it. You can't even legally give it away.

Don't believe me? Read the license agreement that you agree to every time you purchase digital music. If you're like 99.9% of the world, you've clicked right past those agreements to get to the download. Here's what you missed. I've used boldface type to highlight the most interesting parts.

The Terms and Conditions for the iTunes Store contains more than 14,000 words of dense legalese, including these bits:

Apple is the provider of the Service, which permits you to purchase or rent digital content ("Products") for end user use only under the terms and conditions set forth in this Agreement.

[…]

You agree that the Service and certain Products include security technology that limits your use of Products and that, whether or not Products are limited by security technology, you shall use Products in compliance with the applicable usage rules established by Apple and its licensors (“Usage Rules”), and that any other use of the Products may constitute a copyright infringement. Any security technology is an inseparable part of the Products. Apple reserves the right to modify the Usage Rules at any time. You agree not to violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security technology related to such Usage Rules for any reason—or to attempt or assist another person to do so. Usage Rules may be controlled and monitored by Apple for compliance purposes, and Apple reserves the right to enforce the Usage Rules without notice to you. You agree not to access the Service by any means other than through software that is provided by Apple for accessing the Service.

The "Usage Rules" heading contains six rules. Four of those rules apply to products protected by digital rights management technology, including music sold through the iTunes store before early 2009 and movies and TV shows sold at any time. Music tracks sold after March 2009 do not include Apple's FairPlay DRM technology and are referred to as iTunes Plus Products. Rules (i) and (vi) apply to all digital music sold today in the iTunes Store:

(i) You shall be authorized to use Products only for personal, noncommercial use.

[…]

(vi) iTunes Plus Products do not contain security technology that limits your usage of such Products, and Usage Rules (ii) – (v) do not apply to iTunes Plus Products. You may copy, store, and burn iTunes Plus Products as reasonably necessary for personal, noncommercial use.

What about the competition? The Amazon MP3 store Terms of Use contain a mere 1330 words. The license terms make it abundantly clear who owns the product you're purchasing:

2.1  Rights Granted. Upon your payment of our fees for Digital Content, we grant you a non-exclusive, non-transferable right to use the Digital Content for your personal, non-commercial, entertainment use, subject to and in accordance with the Terms of Use. You may copy, store, transfer and burn the Digital Content only for your personal, non-commercial, entertainment use, subject to and in accordance with the Terms of Use.

[…]

5. Reservation of Rights

Except for the rights explicitly granted to you in the Terms of Use, all right, title and interest in the Service, the Software and the Digital Content are reserved and retained by us, our Digital Content providers, and our licensors. You do not acquire any ownership rights in the Software or Digital Content as a result of downloading Software or Digital Content.

And finally, there's the eMusic Subscription Agreement, which contains more than 8800 words, including this blunt statement:

5.2 By enrolling in the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means. You may only make copies of any file obtained through the Service for your own personal use.

[…]

5.6 eMusic derives its rights to use the media offered on the Service from artists, record labels, publishers and other third parties for fixed periods of time and, sometimes, for limited territories. As well, eMusic is sometimes required to pull certain media off the Service (or otherwise restrict access to such media) for legal or commercial reasons.

[…]

8.1 Only you may access the Service using your IDs, unless otherwise agreed to in writing by eMusic. The content available through the Service is the property of eMusic or its licensors and is protected by copyright and other intellectual property laws. Content received through the Service may be viewed, used and played for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, broadcast, perform, make available to third parties or circulate the content received through the Service to anyone or to exploit any such content for commercial or noncommercial purposes without the express prior written consent of eMusic. You further agree not to make use of the Content in a manner that would infringe the copyright therein.

The moral of the story? If you really want to own your music, forget about downloading and buy a CD. You might even save some money compared to a digital download.

Topics: Mobility, Apple, Hardware

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232 comments
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  • Exactly right

    If you have to click through an EULA to use it, then you don't own it (same goes for e-books; if you want to own the book, then buy a paper copy). And if the vendor claims ultimate control over the hardware and how it is to be used, as with a Kindle, iPhone, or XBox, you don't own that either, no matter how much money you paid for it.

    The exception, of course, is with digital media that's either in the public domain or freely copyable. So, yes, you do own those public domain e-books you downloaded from Project Gutenberg.
    John L. Ries
    • true

      @John L. Ries <br>and the relentless microsoft shill won't let a chance pass by badmouthing their competitors. hey ed, why not read us a bit of the zune eula? how about those 10 songs you can keep every months. do you own those?
      banned from zdnet
      • Give me a break

        @banned from zdnet
        True, Ed didn't use the Zune EULA as an example but the article seems to make the point that this is true for every digital file as a rule of thumb.
        use_what_works_4_U
      • RE: Who owns your digital downloads? (Hint: it's not you)

        @banned from zdnet
        why on earth does his comment have to be about a ms shill? All we're talking about is downloaded music in general not something sold exclusively by MS, apple or google. You're a weee bit obsessive.
        rengek
      • isnt it obvious?

        @banned from zdnet because with a SUBSCRIPTION SERVICE even an idiot would realize that once you stop paying the songs go away so how would anyone think they could own the music that there listening too via SUBSCRIPTION?!?

        Duh!
        Ron Bergundy
      • RE: Who owns your digital downloads? (Hint: it's not you)

        @banned from zdnet
        cyberslammer2: try having knowledge in a subject before insulting someones intelligence. The zune pass is a subscription service, however you are able to keep 10 songs per with removed drm exactly like a song you would e downloading from another provider. The songs which the 10 credits were not applied to would dissappear at the end of the subscription and I assume the 10 songs you keep, would not be 'owned' similarly to the examples in the article
        Waucckhewww
      • For purposes of debate...

        @banned from zdnet <br>...it really doesn't matter if Ed (or anyone else) is a shill or not. What matters are the validity of his opinions and the accuracy and usefulness of his reports. If he gets it wrong, or his logic is questionable, or if he's leaving important details out, then call him on it, but since it's almost impossible to determine the motives of people you've never met and will never meet, it's much more productive to focus on the merits of the articles and talkbacks and to avoid making accusations that can neither be proven nor disproven. Propaganda is only dangerous if it goes unchallenged, which isn't likely to happen in this forum.<br><br>Since Ed and John Carroll are the only reliably pro-MS commentators left on ZDNet, and Ed's the only one of those two who posts regularly, it's actually good to have him around to keep all of us "ABMers" honest. <br><br>Ed-- I think you're definitely proven yourself to be a constant friend of MS and fan of its products (rightly or wrongly), but I don't think you're a shill and never have.
        John L. Ries
    • RE: Who owns your digital downloads? (Hint: it's not you)

      What about those cases where you visit a site that, for instance, allows you to listen to music tracks, not just snippets, but full tracks? I'm not talking about streaming music but those sites that actually place a copy of the song on your computer in the temporary internet files directory ( in the case of IE and Windows ). You have not downloaded the song purposely, nor have you acquired it illegally, yet they have placed the song on your personal computer. What laws are in control there? Can you use and listen to that track without ramification in the future, or is it up to you to now go and delete your temporay items constantly?
      brianscook
      • Go read the terms and conditions

        @brianscook

        Each site has a different set of terms and conditions. Go read and see for yourself.
        Ed Bott
      • RE: Who owns your digital downloads? (Hint: it's not you)

        @brianscook If someone with the legal right to the song decides to place a copy on your computer, I would imagine that at a minimum you would have the right to replay it from that location. Technically you should be able to move it to another location on that computer as well as back it up.

        Unless explicitly granted, you would not have the right to transfer that file to another system for use and you could not burn it to give to someone else.

        If the site has an agreement that requires you to clean up afterward, the point is moot since that agreement takes precedence, though I sincerely doubt it could/would
        be enforceable.
        richard233
      • RE: Who owns your digital downloads? (Hint: it's not you)

        Ok, so I read their policies at projectplaylist.com and they state it is illegal for users of the site to download music files.

        Since they download every song you listen to there for you with no warning that they are doing so, I guess it's ok.

        I bet all the copyrighted music owners they list in their search engine are just overjoyed that project playlist is designed to give you free copies of their songs.
        brianscook
      • RE: Who owns your digital downloads? (Hint: it's not you)

        @brianscook

        the short version: you are legally allowed to play it from their site only, finding it in your cache yourself and playing it outside of their site is a violation
        erik.soderquist
    • Not STRICTLY true . . .

      @John L. Ries

      Concerning the Public Domain stuff: Downloading it doesn't mean you own it. No can own it, That's what Public Domain means. You CAN download as many copies as you want, however . . .
      JLHenry
      • Sure you do

        @JLHenry
        You own the copies you made; you just don't hold the copyright, but neither does anyone else.
        John L. Ries
      • RE: Who owns your digital downloads? (Hint: it's not you)

        @JLHenry "Public Domain" means that no copyright attaches. That is absolutely the only meaning of the phrase, no exceptions no discussion.

        "The Pickwick Papers" is in the public domain, but stealing a copy from the bookstore is still theft.
        Blurgle
      • A good example is Linux ...

        @JLHenry ... the copyright for the Linux kernel is owned by Linus Torvalds. He has CHOSEN to license it under the GNU GPL so it can be distributed with a wealth of other utilities which he didn't write which are also distributed under the GNU GPL.

        Lunus COULD release his next Lunix Kernel under a different license. Any one at all as long as his modifications were different enough to not violate the terms of the GPL his last iteration was released under. Or he could write a brand new kernel and license it exlcusively to IBM, for instance. Now that would be a 'kick in the pants', wouldn't it. Linus is free to do so with HIS code. You are not.
        M Wagner
      • RE: Who owns your digital downloads? (Hint: it's not you)

        @mwagner@...

        actually, since Linus is the original owner of the Linux kernel, he could release *his code* for the Linux kernel as is under any license or all of them at the same time.

        what Linus could not do is release other people's contributions to the kernel codebase under another license. those contributions were submitted to him under the GPL and Linus would be bound by the GPL for other people's code in the kernel. however, as enough of the kernel is now not written by Linus himself, what he could release under a license other than the GPL would be very incomplete and likely inoperable without a very large investment in reinventing the wheel to replace parts he didn't write himself.

        i have seen this occur with other projects that turned from purely open source to a dual version with the core being open source and certain add ons being closed source paid add ons. in those cases, the entire original authors group signed off on releasing the closed source version and spent months auditing the code to make sure all pieces they didn't write themselves were ripped out of the closed source version. these were all also (comparatively) much smaller projects than the Linux kernel

        the licensing restrictions get very very tangled very very quickly in such a large project
        erik.soderquist
    • RE: Who owns your digital downloads? (Hint: it's not you)

      @John L. Ries

      I have a hard time believing that I don't own my XBox, unless I sign something agreeing to let someone else (Microsoft) own it. I don't care what they (MS) write on paper somewhere. When I buy a tangible product and I don't sign anything other than my credit card receipt, it's mine. I can set it on fire, shoot it, drop it off a tall building, use it, or sell it. MS can CLAIM they own it, but that doesn't make it so. I have to sign an agreement to give up the ownership rights to something I paid for in a traditional cash for hardware purchase. MS can no more own my XBox than Craftsman can own my socket set nor Chevy can own my vehicle.
      Software Architect 1982
      • RE: Who owns your digital downloads? (Hint: it's not you)

        @Digital Video Expert
        njwjt684
      • Hardware yes, software NO!

        @Digital Video Expert ... your Xbox is driven by MS software. When you remove the shrink-wrap (on the box or any included software/games) you implicitly agree to their terms of use. Period.

        Try to reverse engineer that software and sell an Xbox "knock-off" and and Microsoft will have you in court so fast your head will swim. (So would Apple.)

        Game developers have to agree to similar terms to be licensed to write and sell games for the Xbox.

        In the end, you cannot legally do whetever you want with your Xbox. You CAN transfer ownership but then the new owner will have to agree to the same terms and conditions.

        When it comes to terms of use, it is less about to what extent you violate those terms than it is about how much damage you do to Microsoft by doing so.
        M Wagner