Why First Sale Matters: the Afterlife of Your iTunes Library

A recent piece in Marketwatch emphasizes the thorny questions of what happens to a person's electronic libraries when they die. Shelves of books, LPs, and CDs can be bequeathed to various surviving relatives and friends, or donated to libraries or charity. It’s less clear what happens to someone's iTunes library or their collection of Kindle books.

Two Barriers to Simple Digital Inheritance

Two things create this difficulty. One is the fact that copyright law wasn't originally designed to deal with "born-digital" copies—copies that were sold as digital downloads, and so weren't initially tied to a particular physical object. That leads to problems whenever I want to transfer a copy to someone else—copyright law lets me "distribute" legal copies that I own, but I can't "reproduce" them. Handing over a CD is a distribution. Sending someone an mp3 looks a lot more like a reproduction, since they're actually making a copy of my copy—even if I delete my copy immediately afterwards. This leads a lot of people to assume that born-digital copies can't ever be transferred from their original owner—except to the extent that you can yank out your hard drive and hand it over.

The second problem results from the fact that the sellers of digital works, like Apple and Amazon, will claim that people who buy music files from them don't actually own those files. Instead, whenever you think you "buy" something, they say that you are merely purchasing a "license" to the copy—in essence, a sort of lease or rental, just one with a fixed fee and that lasts forever—or until death doth part you from your iTunes copy of Purple Rain. When you die, your claim on Purple Rain dies with you. Unlike the first problem, this isn't a problem arising from an existing conflict between the nature of the law and the nature of digital copies; instead, it's a problem entirely created by the boilerplate "license" agreements that digital sellers require consumers to click through.

You Shouldn’t Need to Set Up a Trust to Hold Your Digital Property

The second half of the Martketwatch piece is mostly devoted to potential solutions to this, including several people selling software or services that let someone create trusts or other legal instruments to deal with their online accounts after death. But all of those arrangements seem particularly strange in contrast to what happens with all of the non-digital works that the deceased owned. Those, even if not mentioned in a will, just pass on to next of kin. Why can't we have a system that's just as simple for born-digital copies?

Part of what makes dealing with physical property so (comparatively) simple is that the concepts of ownership that underlie it have been with us for centuries, if not millennia, and the laws governing them therefore fit pretty closely with common sense and received wisdom about who gets to control what.

A few centuries of copyright law have allowed us to develop a system that largely reconciles the tension between an individual's ownership of a physical object like a book and the author's ownership of the copyright in the works it contains. The owner of the physical object can't do the sorts of things that multiply the number of copies of the work—she can't make reproductions, or make new adaptations, or create performances based on a book—but can do all sorts of other things normally reserved for the copyright holder—she gets to distribute it, display it publicly, and so on.

Traditional Understandings are of Limited Help

But we've not really had a regular practice, until very very recently, of people essentially buying “books” while supplying their own ink and paper, let alone wanting to scrape letters off of the pages of their book and affix them onto a friend’s blank book.

That not only means that the law is put on its back foot—it was a pretty basic assumption beforehand that any reproduction that an author would ever know of would be the result of a permanent copy being made—it also means that we don't have strong inherent instincts or customs about what copyright holders and retailers should and shouldn't be able to do.

For example, take one of the early, foundational first sale cases in the U.S.:Bobbs-Merrill Co. v. Straus. This is the case that people point to as basically inventing the first sale doctrine in America. The publisher of a novel didn't like the idea of retailers selling it at a discount, so it put a notice in the book after the title page that said:

The price of this book at retail is $1 net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright.

Despite this, the Supreme Court ruled that it wasn't an infringement for a department store to sell the book for 89 cents. In large part, this was formalizing the fact that someone who owns a particular piece of personal property—particularly a commodity like a popular novel—has various rights over it—and that it would be impractical, unworkable, and just plain strange to give someone else from that object's history a veto power over what happened to it in the future.

We'd likely see a similar rejection of a claim on the inside cover of a paperback that no one who paid for the book actually owned it. The same question of how a copyright holder (or printer, for that matter) could claim to control how a book is used long after they've parted ways with the physical object would likely bother a modern-day court just as much as it did the Supreme Court in 1908.

Yet we see those sorts of "license terms" attached to born-digital copies all the time. To a large extent, this might just be because born-digital copies are a relatively new phenomenon, and we haven't had the time to form norms about their ownership. Instead, we muddle up questions of owning the individual copy with ownership (and licensing) of the copyright. Throw in the additional question of software practices, and most people tend to just throw up their hands, skip over the fine print, and get on with their day.

Until someone dies and leaves behind thousands of dollars' worth of digital books and music.

Why is it so Hard to Own Digital Files?

And what do those limitations do for copyright holders? In and of themselves, they don't seem to reduce online infringement. It's just a series of words on a license agreement that almost nobody reads. Even (often ineffective) DRM would be more effective than that, and record labels and digital music distributors have largely dropped the idea of hampering music tracks with digital locks. So why create legal complexities when you're not even getting an advantage against piracy?

One reason might be the concern that infringing copies might be made that masquerade as "used" files—a potential enforcement problem. But is that a significant enough threat to upend the concept that you own what you pay for?

Ways to Reclaim Ownership of Digital Files

There's a number of possible ways forward with these problems. The distribution/reproduction distinction could be fixed with an amendment to section 109, which covers the first sale doctrine under the Copyright Act. Barring that, courts could find that reproductions made in the service of a transfer were fair uses, so long as, at the end of the transaction, you didn't end up with more copies than you started with.

Or copyright holders and retailers could simply change the terms of those agreements and forestall litigation on these issues in the first place. Given the ease with which people already exchange infringing copies of works, it seems unlikely that infringers are waiting with bated breath for a change in Amazon's EULA to unleash an illicit online infringement machine masquerading as a used file store.

Underlying Assumptions are Changing

In any event, it's important that any of these changes be approached sensibly. The point isn't that "the law needs to keep up with technology," but that new technologies uncover old assumptions that have been baked into existing law. For instance, the cores of our copyright laws were created and refined with the assumption that making copies required a significant investment in machinery; that it wasn't worth it for an end user to make just one copy of a work. They were made with the assumption that copyrighted works would be sold in the form of copies fixed in tangible, physical objects. They were made with the assumption that a copy of a work would itself be copied only rarely, if ever. Now, any digital transmission of a work involves it being copied numerous times; making single copies is cheap and easy; and copies of works are sold absent physical containers—they're scooped like bulk candy into a bag you brought to the store yourself, instead of in wrapped retail packages.

It's not just that we need to change laws and business practices so that they no longer adhere to an older set of assumptions. The point isn't for law to play catch-up with every new technology; it's that the law needs to recognize the more abstract features that we've taken for granted in the past, and make sure that they can be accounted for in both the near and far futures.

And what about your iTunes library? For now, your heirs are probably stuck between the legal reality that they cannot take possession of your digital music collection and the practical reality that moving your collection from your computer to theirs is trivially easy. Going forward, it may serve as a reminder that issues of digital ownership are only going to get bigger and more important. We here at Public Knowledge are going to be doing more thinking about this question, so keep checking back here. We are going to need your help.

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