A Guide to Online Music Stores: Licences and DRM

The Electronic Frontier Foundation has posted a guide to the licence terms of major online music retailers. From their comparison, it appears that very few, if any, of the online stores confer proprietary rights in the music they purport to ‘sell’: in most cases, the vendor reserves the right to modify the terms of the licence at any point; alienability (resale) is either restricted or completely prohibited; in short, dealing with the music as owner seems impossible. The result is, I suppose, a bare licence:

Imagine if Tower Records sold you a CD, but then, a few months later, knocked on your door and replaced the CD with one that you can’t play in your car. Would you still feel like you ‘owned’ the CD? Not so much, eh?

But Apple reserves the right to change at any time what you can do with the music you purchase at the iTunes Music Store. For instance, in April 2004, Apple decided to modify the DRM so people could burn the same playlist only 7 times, down from 10. How much further will the service restrict your ability to make legal personal copies of your own music? Only Apple knows.

Another hallmark of ownership is the right to give away or sell your property. That’s called ‘first sale’, and it’s explicitly protected under [United States] copyright law. Yet Apple’s DRM frustrates first sale — just ask George Hotelling, who had to give away the login and password to his iTunes Music Store account in order to resell a single song.

This wouldn’t be so bad if it weren’t for the fact that the music is marketed as if full possessory rights were being conferred: Apple trumpets loudly, ‘Own it forever and a day’. Microsoft says, ‘It just works!’ (if only). Consumers expect ownership, and get something less. The disappointment is even more pronounced in the case of a purchaser who acquires a CD encumbered by DRM. Their rights in the chattel itself do not translate into absolute personal ownership of the album. Such consumers are thus understandably frustrated when they discover that they cannot archive it in a lossless digital format or make a backup copy for their car.