Earlier today, a story emerged from the British tabloids that Bruce Willis was considering suing Apple in a bid to determine who gets his iTunes music collection after his death. Perhaps something more suited for April Fool's Day? We reported it (and fell for it) and we've updated the piece to reflect that the original source was a work of fiction. (Willis' wife tweeted this morning that the story was not true.)
But the one thing still not settled or answered from today's misreporting: what happens to downloaded content when the buyer passes away? (Spoiler alert: just because you buy it doesn't mean you own it, and certainly doesn't mean you can do whatever you like with it.)
Only one in a million people actually read the terms and conditions of any Web site, service, or application. You immediately jump to the bottom of the screen and hit the "I Agree" button and sail off on your digital downloading way. It's the terms and conditions which govern exactly who owns the music you buy even once you escape the mortal coil.
Questions have been left with Apple, but did not respond outside U.S. business hours at the time of writing.
The likely truth is that the contract between you and the service you are using -- say Apple in this case -- is terminated as soon as the person dies. In that event, the contract expires and the person's account and any purchased products cannot be transferred to anyone else.
Say, for example, Willis meets an untimely death and gives his daughter access to his iTunes account beforehand; this is breaking Apple's user agreement and therefore other members of his family cannot legally listen to the music.
But the real argument should be: does it matter whether the content you buy is 'physical' or digital?
When you buy an audio CD from a record store, you own that copy of the music, but you don't own a copyright to the music itself. The Electronic Frontier Foundation explains:
[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).
ZDNet's Ed Bott explained last year that the first-sale doctrine only applies to tangible items. Digital music downloads do not work in the same way. Even if you spend money on a download, it only gives a license to listen to it, for example, but it often comes with restrictions such as preventing that person from lending it, sharing it, or burning it to a CD.
On the face of it, it's quite simple. The iTunes terms of service agreement says under section B:
iTunes is the provider of the Service, which permits you to purchase or rent a license for digital content ("iTunes Products") for end user use only under the terms and conditions set forth in this Agreement.
But the devil is in the details. Set out below, Apple explains:
- You can use iTunes 'products' on up to five computers -- with the exception of film rentals;
- iTunes 'products' can be stored on up to five different accounts on compatible mobile devices. Free content is unlimited;
- Audio playlists can be burned on CDs up to seven times, and the CD becomes subject to the same usage rules as a CD bought from a store;
- 'Products' are provided through a license personal to you;
- You are not allowed to burn iTunes 'products' for anything other than your own personal backups;
- Films can only be viewed on one device at a time, and you cannot move films rented from your iPad, iPhone, iPod Touch or Apple TV;
- You have 30 days after downloading to watch a film, and 48 hours to finish viewing it;
- You have no commercial or promotional rights on any downloaded content.
That's just Apple. Amazon and Google also apply restrictions to what you can do with the music that you buy. It's a standard practice across most if not all online music because it's the copyright owners who set down restrictions on who can do what with the content they produce.
When Apple used digital rights management (DRM) technology to forcibly prevent users from copying or burning downloaded content to CDs, arguably the whole process was easier. You would be told promptly whether or not you could do something with your digital music and that was the end of it. It may not think it was necessarily fair but those are the terms you signed up to.
Apple, and many others, now provides DRM-free files, allowing you to transfer the music onto a set number of other devices that you own -- including but not limited to Apple's own hardware -- but you cannot pass them legally on to other people.
For all intents and purposes, plugging in a friend's iPod and transferring over music is exactly the same as sharing a music file through a peer-to-peer network; it's just that the latter is slightly easier to trace.
If someone does challenge the terms -- Willis or anyone else -- which do not explicitly state what happens when someone does die and leaves a wealth of downloaded content behind, it could result in a change in licensing agreements.
"By forcing a change in licensing agreements, he could potentially rob his fellow artists of income," warns Joshy Thomas, an intellectual property lawyer speaking to The Guardian.
After all, Apple and other music stores are just the person in the middle. It's not always down to them to set the terms because they have their own agreements with record labels, movie studios, and the like.
For now, shall we just agree to keep quiet? Or would you like to sign something to that effect?