Digital downloads: what you own - and what you don't
5th Nov 2012 | 12:59
Get the facts on the digital download era
The news story that Bruce Willis was considering legal action against Apple over his desire to leave his digital music collection to his daughters proved to be without foundation, but the issues it brought to light - to many for the first time despite years of downloading music - are highly prescient.
It's about time we all knew what we're paying for. Have you ever read the terms and conditions on iTunes, Amazon, or any other music or film download site? No, of course not. Life is far too short for legalese.
If you did you'd soon figure out that the song you just bought isn't worth a penny. Not to you, anyway - because you haven't actually purchased it.
Can I leave my iTunes collection to my kids?
Brushing over the faint possibility that your kids don't want their father's much-loved 50GB collection of largely Pink Floyd-generated music, the answer - legally speaking - is no. At least, not the downloaded stuff.
Unlike a CD collection, a DVD or a paperback book, none of these downloaded items can be be lent to friends, re-sold or left to loved ones upon our death because the laws on the ownership of physical and 'intangible' virtual goods differ.
"Many people would be surprised to know that the ownership of digital content is a personal right, and may not, for example, be passed on to their estate if they pass away," says Tom Scourfield, a Partner at European-wide law firm CMS Cameron Mckenna. "This is in stark contrast to physical goods, where ownership rights are generally exhausted on first sale allowing the purchaser the freedom to use or resell that item how they wish."
Look for the hidden phrase that says 'this licence is non-transferable'; your music collection isn't yours at all.
Can't I just tell someone my login details so they can takeover my account?
Of course - and no one is going to know, let alone complain. "In practice I can hand my iPod to someone or very easily leave my mac to my estate," says Vanessa Barnett, a commercial lawyer at Charles Russell who specialises in advising clients on online business, marketing and brand promotion.
From a technical legal perspective giving someone a smartphone loaded with MP3 files is in breach of the law, but the reality is very different. "It's not in anyone's interests to enforce against individuals leaving things to their family," says Barnett. "No one will ever sue anyone because they've left some music to their estate. Broadly what will happen is that someone will go into the account with the password and update the details."
The answer to this question and the previous one about bequeathing an iTunes collection, then, is effectively a big fat yes.
So does digital ownership even matter?
Yes, because it doesn't exist. Anything you've legally downloaded isn't owned by you at all, which is a bit of a change to how things used to be in the analogue world; the internet has given us a degree of convenience, but taken away any notion of ownership.
"Whilst there is only a small price differential between CDs available for purchase compared to download, consumers often forget that their rights in the former are generally much better defined, durable and adjustable than the latter," says Scourfield.
Could I sell my 'used' MP3 songs just as I did my CD collection?
No - not yet - but the debate about what we consumers can do with a digital file rages on. "The reason we have copyright at all is that people respect the creative industries," says Barnett. "Wrapped up in that respect is a bargain - some things I agree I'm not allowed to do, but I am allowed to do other things - and if the balance between those isn't right, it's never going to fix itself."
We've always been able to sell books, records, CDs and tapes, so why can't we trade digital versions? If we're starting to sound like a scratched record, that's ironically exactly what digital ownership - once asserted - avoids, and why it's so attractive; the 'selling' of 'used' MP3 files is the next big thing online, according to some.
The content-owning industry is currently preventing this in the courts, and it's easy to see why; we're not talking dog-eared books or grimy CDs here; a second-hand digital file is as pristine and perfect as the day it was freshly zapped onto a server.
"Companies that have tried to establish the same regime for downloads as applied to physical goods have come under legal attack," says Scourfield. "For example, in the US, a company offering to sell 'second hand' MP3 downloads has been sued by one of the major record labels, challenging their entitlement to do so."
This followed a case in Europe over the ability of companies to offer 'used' business software, though arguments in favour of software being legal to sell-on if it's been completely removed from the original purchaser's computer have so far been rejected.
However, there are rumblings that selling-on copyrighted digital files might be possible one day, largely because that's how buying and selling has always been done. "There are hints that the rights holders are trying to have their cake and eat it," says Barnett, who thinks there's now a general agreement that the 'old' situation is what consumers want. "Ultimately the business world should support legal sales. It's part of the bargain of buying, and it has to work."
Does this lack of proper ownership cause piracy?
Copyright owners don't appear to think so, and tend to see piracy as a criminal act to be prevented at all costs, though some are starting to see it as a missed opportunity born of a business model that frustrates many of its its bona fide customers.
"Piracy is not a single behaviour, but rather motivated by a spectrum of behaviours that we call 'The Piracy Continuum'," says Doug Lowther, EVP Sales and Marketing at digital content security company Irdeto.
"Some piracy is based on criminals whose intent is illegal profits, others are individual hackers who seek notoriety or to damage their targets, but some are simply everyday consumers who would probably purchase legitimate alternatives if they were given the opportunity."
Notorious they might be, but the likes LimeWire, Megaupload, The Pirate Bay and anything to do with bittorrent aren't what's dogging the content owners; Harris Interactive reported in 2010 that 23 percent of people regularly download music illegally purely by using Google.
Overall, 28 per cent of internet users globally access unauthorised services on a monthly basis, according to the International Federation of the Phonographic Industry (IFPI), who say that around half of these are using peer-to-peer networks.
As demand for digital music and films goes up, bandwidth increases and the devices that play digital music, films and books spread through society, piracy will become even easier, argues Lowther, suggesting that legitimate services need to up their game and provide consumers with alternatives because most people would rather not spend their time hunting for content and downloading it from dodgy websites.
"The industry needs to get to grips with the reality that these types of 'piracy' are very different in nature and require very different responses," says Lowther.
Are we stuck with this broken business model?
"The business models being used are a knee-jerk reaction - they're trying to put analogue model in the digital space," says Barnett, "but because the digital space works differently and we interact with it differently, by and large they aren't working."
Take the ebook that comes in a locked format that can only be read by one registered device, a TV programme that can be downloaded and watched on a computer or phone, but bizarrely not on a TV, or the dreaded 48-hour expiry of a downloaded film, where a specific time is given for watching a purchased file.
None of these can be very easily consumed by the 'owner', let alone lent to friends or sold-on. What if your plane journey is shorter than the film, and it's expired by the time you get home? "It's a mad business model that doesn't reflect the way consumers behave," says Barnett.
"Illegal downloading sometimes is an attempt to avoid payment, but it could also suggest that there is some real market demand that is not being met," says Lowther, suggesting that concerns over formats and device compatibility frustrate many.
Can't we just use the cloud?
Could a model where everyone streams everything directly from the cloud solve both problems by making piracy pointless and digital ownership - or lack of - more obvious to consumers?
"The popularity of streaming services demonstrates a clear attempt by the media industry to try to move consumers away from a retained content model and towards an 'all you can rent' model," says Scourfield, though no single online service could ever host every book, film or song.
We're already aware of some 'cloud clowns' claiming to have deleted every ripped and purchased MP3 they have on their computers, stating 'I now only use Spotify'.
"Cloud services are brilliant, but as a consumer you should still have a concern," says Barnett, "You don't have a physical digital file and your cultural and social history is bound-up into someone else's business model, and whether that succeeds or fails."