Recently, there have been several news stories about what happens to your digital music, videos, and eBooks purchased from Apple’s iTunes when you die. The same question would apply to other digital music, video, and eBook sellers (for example, eBooks purchased on an Amazon Kindle or a Barnes & Noble NOOK). Some of these news stories (for example, this CNN story from September 3, 2012 and this Daily Mail story from September 2, 2012), have speculated that actor Bruce Willis may be considering legal action against Apple regarding his digital music collection, but that has been denied by his wife according to CNN.
I previously wrote about this topic in May 2011, but it’s a good time to dig deeper into these issues. Since then, a new federal case has been filed (but not yet decided) that should answer key questions about what rights a person has in downloaded Apple iTunes digital music files, at least with respect to copyright law. Before I describe this new case, I want to walk through a few of the layers involved and draw some comparisons between digital media files (e.g., songs, videos, and eBooks) and traditional media (e.g., paper books, vinyl records, cassette tapes, CDs, DVDs, Blu–Ray discs, etc.).
“The Account Itself” versus “The Contents”
So, the bottom line is that, after a person becomes incapacitated or dies, the family members and fiduciaries must read the applicable Terms of Service contracts to see whether the digital media accounts—“the accounts themselves”—are transferable or not. If “the account itself” is not transferable, then the family members and fiduciaries must read the applicable Terms of Service contracts to see whether they are authorized to access the incapacitated or deceased user’s digital media account to download the digital media files that the user already paid for. Typically, the user has already downloaded all of the digital media files to the user’s computer, iPod, iPad, Kindle, NOOK, or other electronic devices, but double–check to make sure. Also, the user’s electronic devices may be locked with a lost or forgotten password that prevents the beneficiary from access the digital media files. Once the fiduciaries and family members have the digital media files, the next question is: what happens to those digital media files?
What Can You Do With Your Digital Media Files?
So, what happens to the digital song, video, or eBook files that a deceased user previously legally downloaded to the user’s device(s) from an online service provider (e.g., Apple iTunes, Amazon Kindle, Barnes & Noble NOOK, etc.). Before distributing those digital media files to the appropriate beneficiaries after the user dies, the fiduciaries and family members should consider issues involving: (1) copyright law, (2) the Terms of Service contract where the user purchased the digital file, and (3) whether the digital file has any “digital rights management” (DRM) copy–protection on it.
Except for one interesting potential twist that I’ll discuss below, the copyright law issues and DRM issues should generally be the same for a person’s digital media files as they are for a person’s paper books, vinyl records, cassette tapes, CDs, DVDs, Blu–Ray discs, etc. You generally can’t make multiple copies of these items and hand out those copies to each of your friends and family members (during lifetime or after death), because that would violate the “reproduction right” of the copyright act. 17 U.S.C. § 106. And, if you circumvent the DRM protecting the digital media file, CD, DVD, Blu–Ray disc, etc. from being copied, you may be violating the Digital Millennium Copyright Act of 1988 (DMCA).
In general, you can leave an individual paper book, vinyl record, cassette tape, CD, DVD, Blu–Ray disc, etc. to one beneficiary at death without violating copyright law. Your fiduciaries or beneficiaries could keep it, or they also could sell it or otherwise dispose of it without violating copyright law. Why? The “first sale doctrine” of copyright law permits the owner of a lawfully–made copy to sell or otherwise dispose of that copy. 17 U.S.C. § 109(a). The “first sale doctrine” of copyright law does not require a sale—it also applies to a transfer by gift. UMG Recordings, Inc. v. Augusto, 558 F.Supp.2d 1055 (C.D. Cal. 2008). Just to be clear, the “first sale doctrine” allows you to sell or otherwise dispose of a lawfully–made copy, but it does not allow you to reproduce the copyrighted work.
Before I discuss the interesting potential twist for digital media files and copyright law that I hinted at above, there are two other things to consider when deciding what you can do with your digital media files. First, check whether the Terms of Service contract with Apple iTunes or with another service provider restricts how you can use the digital media files that you download. The iTunes Terms of Service contract has a section of “Usage Rules” that states you can use iTunes media files on up to five iTunes–authorized devices at any time (Apple calls this feature “Home Sharing“) and you can “burn an audio playlist up to seven times” (“burning” describes the process of recording a digital song file onto a CD). But, if you read carefully, those two restrictions don’t apply to “iTunes Plus Products.” These “iTunes Plus Products” are Apple’s digital music and video files sold without DRM, and the iTunes Terms of Service contract says “You may copy, store, and burn iTunes Plus Products as reasonably necessary for personal, noncommercial use.” Second, if a digital media file is protected with DRM (copy–protection), then you have another layer of analysis—whether the digital file can be transferred without violating the Digital Millennium Copyright Act of 1988.
Does the “First Sale Doctrine” of Copyright Law Apply to Digital Media Files?
Finally, if the fiduciaries and family members have obtained the deceased person’s digital media files (songs, videos, eBooks, etc.), have determined that a transfer or sale of the digital media files does not violate the Terms of Service contract with Apple iTunes or with another service provider, and have determined that the digital file can be transferred without circumventing any DRM (and potentially violating the DMCA), then the remaining question is whether the “first sale doctrine” of copyright law applies to the digital media files themselves. That question leads us directly to the the interesting potential twist for digital media files and copyright law that I hinted at above, as well as the pending case that I hinted at above.
The interesting potential twist is that some parties are arguing that selling digital media files (songs, videos, eBooks, etc.) themselves should not fall under the “first sale doctrine” of copyright law because a digital music file itself, as the argument goes, is different from a “material object in which a work is fixed” like a vinyl record, cassette tape, or CD.
For example, when you buy a music CD, you acquire a polycarbonate plastic disc, which is a material object in which the copyrighted music works are fixed. Your rights to give that physical CD away or to sell that physical CD are protected under the “first sale doctrine.” But, can you give away or sell your digital music files? And, does it make a difference if you are transferring just the digital music files themselves versus transferring the iPod (or similar device) containing one or more digital music files that you legally purchased?
The questions above are a central part of the case of Capitol Records, LLC, v. ReDigi Inc., filed in January 2012 in the United States District Court, Southern District of New York, case number 12–CV–0095. ReDigi is an online service “to store, stream, and/or sell your legally purchased digital music.” Capitol Records sued ReDigi on various copyright infringement grounds.
When you buy digital music on your iPod, for example, the iPod is the material object in which the copyrighted music work is fixed. It was stated by Capitol Records’s attorney in a February 6, 2012, hearing in this case that giving away or selling your iPod with the digital music on it is protected under the “first sale doctrine.” But, the potential twist that they argued, essentially, is that you can’t make a reproduction of a particular digital music file itself after it has been “fixed” to your iPod. In other words, giving away or selling a digital music file separate from the iPod involves reproducing the copyrighted song from the iPod to a new storage device, and the “first sale doctrine” only permits you to sell or otherwise dispose of the “material object”—the iPod. This argument is based on the term “copies” in the Copyright Act. Section 106 of the Copyright Act gives a copyright owner exclusive rights “to reproduce the copyrighted work in copies or phonorecords” and “to distribute copies or phonorecords of the copyrighted work.” The key term is “copies,” which is defined in § 101 of the Copyright Act as “material objects, other than phonorecords, in which a work is fixed,” and it “includes the material object, other than a phonorecord, in which the work is first fixed.”
The analogy used by Capitol Records’s attorney in the February 6, 2012, hearing is a paper book. Copyright law allows you to give away the book or to sell the book. But copyright law doesn’t allow you to photocopy the book and give that photocopy to someone else (even if you throw the book in the garbage).
The counter–argument that has been made is that the terminology in 17 U.S.C. § 106 that gives a copyright owner exclusive rights “to reproduce the copyrighted work in copies or phonorecords” and “to distribute copies or phonorecords of the copyrighted work” is identical to the terminology in 17 U.S.C § 109(a) that says “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of that copy or phonorecord” (the “first sale doctrine”). In other words, either digital media files are included in “copy or phonorecord” for both the copyright owner’s exclusive rights and the “first sale doctrine” exception to those rights, or, in the alternative, if a digital media file does not fall within the scope of the “first sale doctrine” wording, a digital media file similarly would be excluded from the copyright owner’s exclusive rights under the Copyright Act.
A counter–arugment to that counter–argument is that the “first sale doctrine” only applies to the “actual copy” that is initially made when you downloaded it and “fixed” to your iPod (for example), but you can’t make a reproduction of that “actual copy” that is initially made. In other words, any sale or other disposition of the digital music file itself would be a reproduction. On the other hand, according to statements made by ReDigi’s attorney in the February 6, 2012, hearing in this case, each iTunes digital music file has a unique identifier in it so that you can check to ensure there is only one of that unique digital music file. So, it should be possible to track the “actual copy” that is legally downloaded with its unique identifier (e.g., ReDigi’s software could search a person’s computer and other devices to make sure there aren’t additional copies of that unique digital music file, as well as watching the ReDigi servers to see if that unique digital file goes through their marketplace improperly).
There are other interesting arguments and counter–arguments that will be explored in this case, including the scope of the “fair use doctrine” and the concepts of “time–shifting” and “space–shifting” as they are applied to the digital music files themselves. The final decision in this case may have a significant impact on what happens to your digital music, video, and eBook files themselves when you die (and while you’re alive too), at least with respect to the copyright law issues. This will be very interesting to watch as it develops.