Do I own the CD?

[Phil Stripling]

Bill <wecjr1@theworld.com> writes:

> If I purchase iTunes from Apple at .99 cents a pop and put them on a CD,
> do I own the CD? Can I sell it? Give it away? Burn it? I could find
> nothing in Apple's FAQs on this subject. Please forgive me it this news
> group is not appropriate for this question.

Hi, Bill,

You've asked an interesting question, and the answer is complex. The CD is
a piece of plastic with some metal that has pits on it that represent any
data you've burned to the disk. This piece of plastic is yours. You bought
it, you own it.

I am not so sure you own the data on the piece of plastic, though. I don't
think you "purchase" tunes at 99 cents a pop. (Note that you are not buying
iTunes when you download tunes.) My understanding is that you are
_licensing_ certain rights in the song. This is different than _buying_ the
piece of plastic that is the CD. Having burned the data that represent the
song to a CD that you own is something that your license allows, but
burning the song to CD does not change the terms of the license governing
your rights in the data.

(One way to think about this is that when you buy the CD, it's your piece
of plastic, no one else can own it, it's yours exclusively. When you
license a piece of music for download, it's not yours exclusively -- the
data are still there for others to license as well. It's a nonexclusive
license. You don't "own" the song. You do "own" the CD you wrote it to.)

Although Apple's Web site talks about "buying" music, it also mentions the
restrictions: "In a nutshell, you can play your music on up to three
computers, enjoy unlimited synching with your iPods, burn unlimited CDs of
individual songs, and burn unchanged playlists up to 10 times each." This
is a brief description of your license.

(The definition of license is "revocable permission." If you buy tickets to
a concert and you actually read the print, you may find it says you have a
license to attend. That means they can revoke your permission to be there
and kick you out for certain reasons. A driver's license is also revocable
permission. The state gives you revocable permission to operate a motor
vehicle on its roads. This permission is represented by another piece of
plastic that has your name, address, and probably your picture on it. The
piece of plastic is called the license, but it's just the evidence that you
have revocable permission. The card has taken on a life of its own as
government-issued photo ID and so forth, so nowadays there's more to the
piece of plastic than just evidence of having revocable permission to
operate a motor vehicle.)

I don't use iTunes, so I haven't read whatever agreement you have to click
through, but if you take the time to do so, I'm sure it will explain what
rights you obtain when you license the music. It probably will be more
accurate than the Web site in its use of terminology, too. I doubt that you
can sell the CD, since you're buyers are not interested in a used CD,
they're interested in the content, right? You _may_ be able to give it
away, but I wouldn't bet on it (what people would want is not the piece of
plastic, but the content, right?). You can destroy the CD, since it's your
exclusively owned piece of plastic. No problems with content there. :-)

I hope this is of some help and not more than you wanted to know.
--
Philip Stripling | email to the replyto address is presumed
Legal Assistance on the Web | spam and read later. email to philip@
[url]http://www.PhilipStripling.com/[/url] | my domain is read daily.

[Bill]

Phil Stripling wrote:

> Bill <wecjr1@theworld.com> writes:
>

> > If I purchase iTunes from Apple at .99 cents a pop and put them on a CD,
> > do I own the CD? Can I sell it? Give it away? Burn it? I could find
> > nothing in Apple's FAQs on this subject. Please forgive me it this news
> > group is not appropriate for this question.

>
> Hi, Bill,
>
> You've asked an interesting question, and the answer is complex. The CD is
> a piece of plastic with some metal that has pits on it that represent any
> data you've burned to the disk. This piece of plastic is yours. You bought
> it, you own it.
>
> I am not so sure you own the data on the piece of plastic, though. I don't
> think you "purchase" tunes at 99 cents a pop. (Note that you are not buying
> iTunes when you download tunes.) My understanding is that you are
> _licensing_ certain rights in the song. This is different than _buying_ the
> piece of plastic that is the CD. Having burned the data that represent the
> song to a CD that you own is something that your license allows, but
> burning the song to CD does not change the terms of the license governing
> your rights in the data.
>
> (One way to think about this is that when you buy the CD, it's your piece
> of plastic, no one else can own it, it's yours exclusively. When you
> license a piece of music for download, it's not yours exclusively -- the
> data are still there for others to license as well. It's a nonexclusive
> license. You don't "own" the song. You do "own" the CD you wrote it to.)
>
> Although Apple's Web site talks about "buying" music, it also mentions the
> restrictions: "In a nutshell, you can play your music on up to three
> computers, enjoy unlimited synching with your iPods, burn unlimited CDs of
> individual songs, and burn unchanged playlists up to 10 times each." This
> is a brief description of your license.
>
> (The definition of license is "revocable permission." If you buy tickets to
> a concert and you actually read the print, you may find it says you have a
> license to attend. That means they can revoke your permission to be there
> and kick you out for certain reasons. A driver's license is also revocable
> permission. The state gives you revocable permission to operate a motor
> vehicle on its roads. This permission is represented by another piece of
> plastic that has your name, address, and probably your picture on it. The
> piece of plastic is called the license, but it's just the evidence that you
> have revocable permission. The card has taken on a life of its own as
> government-issued photo ID and so forth, so nowadays there's more to the
> piece of plastic than just evidence of having revocable permission to
> operate a motor vehicle.)
>
> I don't use iTunes, so I haven't read whatever agreement you have to click
> through, but if you take the time to do so, I'm sure it will explain what
> rights you obtain when you license the music. It probably will be more
> accurate than the Web site in its use of terminology, too. I doubt that you
> can sell the CD, since you're buyers are not interested in a used CD,
> they're interested in the content, right? You _may_ be able to give it
> away, but I wouldn't bet on it (what people would want is not the piece of
> plastic, but the content, right?). You can destroy the CD, since it's your
> exclusively owned piece of plastic. No problems with content there. :-)
>
> I hope this is of some help and not more than you wanted to know.
> --
> Philip Stripling | email to the replyto address is presumed
> Legal Assistance on the Web | spam and read later. email to philip@
> [url]http://www.PhilipStripling.com/[/url] | my domain is read daily.

Hi, Philip,
Thank you so much for the explanation. I understand what you are saying.
However, I get tangled up when I think about other products that are licensed.
For instance, LPs that contain analog data or CDs (also computers) that
contain binary data that I have purchased from retail stores. I think the data
on these products is also licensed to the customers. However, there seems to
be no legal problem if the customer chooses to sell these products (data
included) at some future time for a profit or a loss. Does this violate the
license agreement? If not, how is this different for iTunes?

Thanks again for your help.
Bill
P.S. I did spend a lot of time searching Apple's FAQs and reading their
agreements. I probably missed the explanation or just didn't understand it.

[Davoud]

Bill:

> ...For instance, LPs that contain analog data or CDs (also computers) that
> contain binary data that I have purchased from retail stores. I think the
> data on these products is also licensed to the customers. However, there seems to
> be no legal problem if the customer chooses to sell these products (data
> included) at some future time for a profit or a loss. Does this violate the
> license agreement? If not, how is this different for iTunes?

I am guessing here. You may legally sell that LP or cassette or CD as
long as you don't retain a copy of the information thereon in any form.
You may even sell it at a profit (rare LP, e.g.). With songs purchased
from the iTunes Music Store, however, it is the intent of the license
that you not sell the songs you have purchased. The iTunes Terms of
Sale <http://www.info.apple.com/usen/musicstore/policies.html> says,
inter alia:

"You shall be authorized to use the Product only for personal,
non-commercial use.

"You shall be authorized to use the Product on three Apple authorized
computers.

"You shall be entitled to burn and export Products solely for personal,
non-commercial use."

Note that it says "personal," not "*your* personal." In other words,
the agreement isn't distinguishing between you and other persons, it is
distinguishing between personal use and commercial use. Given that the
iTunes software permits the burning of an unmodified Playlist 10 times
<http://docs.info.apple.com/article.html?artnum=93016>, and that the
software permits unlimited transfer of purchased music to iPods, it
would seem that the license allows one to give away music purchased
from the iTunes Music Store. The following question remains unanswered:
if one didn't want to own a piece of purchased music any more, could
one sell it to another person on a CD or as an iPod track, provided
that the seller did not retain a copy of the the music in any form? The
answer may be of academic interest, but it has little practical value,
as it doesn't seem like something that is likely to happen often. I
bought a song that turned out to be a different version than I thought
I was buying, and it was a version that I did not like. For $0.99 I
simply delelted it. In fact, regardless of what it cost, if the music
was non-returnable (which is the case with music that one purchases
from the iTunes Music Store), I would still have deleted it.

Davoud

--
usenet *at* davidillig *dawt* com

[Bill]

Hi, Davoud,
Thanks for your help. The web page you provided is very helpful. However,

> ...from the iTunes Music Store. The following question remains unanswered:
> if one didn't want to own a piece of purchased music any more, could
> one sell it to another person on a CD or as an iPod track, provided
> that the seller did not retain a copy of the the music in any form? The
> answer may be of academic interest, but it has little practical value,
> as it doesn't seem like something that is likely to happen often. I
> bought a song that turned out to be a different version than I thought
> I was buying, and it was a version that I did not like. For $0.99 I
> simply delelted it. In fact, regardless of what it cost, if the music
> was non-returnable (which is the case with music that one purchases
> from the iTunes Music Store), I would still have deleted it.

this may be of a bit more interest than just academic. Suppose a friend, neighbor,
family member, etc. would like to have a CD with iTunes songs and they do not have the
equipment required to obtain it from the iTunes Music Store. Could I legally purchase
it from the iTunes Music Store and create a CD for them using my equipment? It is
understood that I cannot continue to play the music for my own personal use.

This does appear to be something of a "sticky wicket".

Thanks in advance for your help and opinions.
Bill

[Phil Stripling]

Bill <wecjr1@theworld.com> writes:

> Thank you so much for the explanation. I understand what you are saying.
> However, I get tangled up when I think about other products that are
> licensed. For instance, LPs that contain analog data or CDs (also

Back in the days of vinyl, of course, no one could make perfect
copies. Even taping on the best machines from a vinyl record left you with
hisses and pops. And then you had a tape; most people had record
players. if you wanted to press a record to sell, you had to have a
plant. So the practicalities of those days meant that stealing the content
from an LP was not an issue. You bought the vinyl and you could play it on
a record player till you wore it out. Your only options were pretty much
throw it away or sell it used. No problems with separating the content from
the medium. Vinyl LPs were like books -- you bought one and you owned the
medium that contained the intellectual property. The medium and its content
were pretty much inseparable. (I used to buy an LP and tape it, then play
the tape to keep the vinyl in pristine condition to re-tape when the tape
wore out. Now I have a bunch of LPs that have been played exactly once in a
box somewhere and no record player. I don't even play the tapes that much
anymore between the music being horribly old and switching to CDs.)

> computers) that contain binary data that I have purchased from retail
> stores. I think the data on these products is also licensed to the
> customers.

Licensing became an issue when people started selling software on
floppies. Companies very quickly stopped 'selling' the software and selling
licenses instead, with no warranty except as to the medium the software was
delivered on. The companies had to deal with the fact that the content was
not only readily separable from the medium it was delivered on, it was
_required_ for you to use it -- you had to load it into memory. And you
then had a perfect copy. You could save it as many times as you wanted to
floppies (or CDs nowadays) and sell, trade, or give them away.

> However, there seems to be no legal problem if the customer
> chooses to sell these products (data included) at some future time for a
> profit or a loss. Does this violate the license agreement? If not, how
> is this different for iTunes?

One of my pieces of software says I can transfer the software "and all
rights under this license to another party together with a copy of this
agreement provided that the other party reads and agrees" with the
terms. That's in the written manual that came with the software. Remember
written manuals? :-)

For each piece of software and for iTunes and for your licensed content,
you have to read the license agreements to see what your rights are
regarding transfer of the licensed property. I pulled out my manual for the
software and found that I can "sell" that software for a profit or
loss. I'm willing to bet the floppies or CDs that Windows 95 and later
Windows OSes came on have different licenses concerning what I can transfer
to another party.

(By the way, the software says it can only be run on "computers of the type
identified on the package accompanying the diskettes." That means that if
the program is a Windows program, I can't load it on a Mac running Virtual
PC. Microsoft, of course, now owns Virtual PC.)

>SNIP<
> P.S. I did spend a lot of time searching Apple's FAQs and reading their
> agreements. I probably missed the explanation or just didn't understand it.

That's one of the issues regarding enforceability. The terms for iTunes
were on that install dialogue box you had to click through to install the
program -- there was an option to print it out, but who does that? Then you
have an agreement that you've agreed to but that you've never read. No
written manuals anymore, means no written agreements you can turn to and
see what you're being bound by. Even if you did carefully read and
understand the agreement when you cicked through, who can remember all the
different terms and conditions to all their apps? And if you have a
question, where on your computer do you look to find the terms of the
iTunes license?

--
Philip Stripling | email to the replyto address is presumed
Legal Assistance on the Web | spam and read later. email to philip@
[url]http://www.PhilipStripling.com/[/url] | my domain is read daily.

[Tom Harrington]

In article <200720031633543644%see@below.net>, Davoud <see@below.net>
wrote:

> I bought a song that turned out to be a different version than I
> thought I was buying, and it was a version that I did not like. For
> $0.99 I simply delelted it.

Just out of curiosity, how is this possible? Are the versions so
similar that the 30-second preview wasn't sufficient to tell the
difference? I ask not to needle you about it but because I wonder if
I'll make the same mistake at some point.

--
Tom "Tom" Harrington
Macaroni, Automated System Maintenance for Mac OS X.
Version 1.4: Best cleanup yet, gets files other tools miss.
See [url]http://www.atomicbird.com/[/url]

[Davoud]

Davoud:

> > I bought a song that turned out to be a different version than I
> > thought I was buying, and it was a version that I did not like. For
> > $0.99 I simply delelted it.

*****

Tom Harrington:

> Just out of curiosity, how is this possible? Are the versions so
> similar that the 30-second preview wasn't sufficient to tell the
> difference?

Just so. The version that I was looking for was a studio version, and
the version that I bought was a live-performance version. I could not
discern this -- or the other differences -- from the two previews, and
if there was peripheral information to identify the recording as being
from a live performance, I did not see it.

> I ask not to needle you about it but because I wonder if
> I'll make the same mistake at some point.

That doesn't seem likely, does it? I've bought lots of music -- maybe
$200 worth -- from the iTunes Music Store and this has happened only
once. That's an error rate of about one-half of one percent -- no big
deal in my book. Furthermore, now that you and I are cautioned, I
expect that this would be less likely to happen to me again, or to you
ever.

I might add that if the studio version of the song that I bought had
not been available, I would have been happy to keep the
live-performance version; "did not like" is entirely relative.

Davoud

--
usenet *at* davidillig dawt com