London - My vinyl copy of Captain Beefheart’s Trout Mask Replica is a treasured thing – all four unlistenable sides of it – and it’s there in my will as part of the motley collection of recordings I’ve amassed.
If I get hit by a bus, my friend Jenny will get it, but the fate of the gigabytes of music I’ve bought online isn’t so clear. Weirdly, they’re not mine to bequeath; I merely have them on a permanent loan.
Of course, it’s possible Jenny will play fast and loose with copyright law and play some of those MP3s at my wake.
But legally she’s not supposed to. It’s anyone’s guess why Bruce Willis has been considering his own mortality and copyright law of late, but he’s reported to be taking Apple to court to protest against this issue: the fact that he’s not entitled to leave the thousands of dollars of music he’s bought from them to his four daughters.
While Apple, Google, Amazon et al extol the virtues of buying digital media over their physical equivalents (say goodbye to the frustration of losing your music – access it across multiple devices), the resulting decline in popularity of the CD, DVD and books has meant a decline in consumer power.
With those objects, a “first-sale doctrine” applies; once we’ve bought them the copyright-holder can’t stop us doing whatever we like with them.
Digital activists have argued the same doctrine should apply to digital downloads, but the screeds of licensing conditions we agree to prior to purchase appear to overrule this centuries-old concept.
As a result, you get situations like the one in 2009 where Amazon, realising it had sold improperly licensed copies of George Orwell’s 1984, remotely wiped them from all Kindles.
Online media vendors retain such power. Spurning the first-sale doctrine is an essential part of their business model.
After all, “second-hand” files are indistinguishable from originals, so their availability affects the market for the originals in a way a tatty vinyl copy of Trout Mask Replica certainly doesn’t.
Recently, an ingenious service called Redigi tried to call the industry out on this by inventing a second-hand marketplace for files bought from iTunes. Predictably, EMI sued; that court case is due next month.
Over the next few years we’ll start thinking more about our “digital estates” and how to pass them on.
A British company, Cirrus Digital Legacy Services, already offers options to bequeath many online accounts, including social media – but iTunes is notably absent, and it’s hard to see how copyright law would change that in our favour.
If the US Copyright Office gets its way, it’s unlikely Rumer, Scout, Tallulah and Mabel Willis will ever get their hands on the sweet sounds sitting on their dad’s iPod. – The