Editor's Letter

Editor’s Letter: Will Bruce Willis’ digital music receive a fate worse than death?

By | Published on Tuesday 4 September 2012

Bruce Willis

When he’s not crawling around in a white vest and shouting “Yippee ki-yay, motherfucker!” at unassuming passers by, Bruce Willis likes to enjoy music. Lots of music. Both playing it¬†and listening to it. And Bruce is totally down with the digital revolution. He thinks CDs are for dorks and endlessly purchases music from iTunes muttering about what saps people who still buy physical media are.

Or at least he did. Because at some point – possibly as a distraction after throwing a terrorist with a suspect German accent out of a window – Bruce read the iTunes terms and conditions, which he (like all of us) had agreed to many times before without actually looking at them. There he discovered that he was actually ‘purchasing’ his music under a restrictive licensing agreement, and that one of the restrictions was that ownership of that license (and therefore the AAC files he had downloaded from Apple) was not transferable.

“OUTRAGEOUS”, Willis could possibly have roared, throwing the machine gun he stole from another terrorist earlier that day across the room. “When I die my entire music collection will die with me! My children will be denied the opportunity to listen to the entire Shed Seven catalogue at no additional cost to themselves”.

The clause which may or may not have caused the actor to speak these actual words is this one: “Apple is the provider of the iTunes Service, which permits you to purchase or rent digital content (‘iTunes Products’) for end user use only under the terms and conditions set forth in this Agreement”.

End. User. Use. Only. Goddamn it, he was right. Only the purchaser of the content is allowed to consume it. How painfully unfair. Something must be done! And it will be if Bruce has anything to do with it. Because he’s going to sue Apple! Or so says The Sunday Times, which published an article on all this at the weekend.

I should note that this whole story is almost certainly untrue (Mrs Willis has said as much on Twitter). Some are even speculating that someone saw a much drier article about digital content and ‘wills’, and simply added an ‘i’ to make the whole thing more explosive. And given that this story has had worldwide coverage in the last 24 hours, it looks like it worked.

But hey, if CMU’s Business Editor Chris Cooke can go on BBC World News to discuss Willis v Apple, then I’m going to discuss it here too. And so what if I continue to use the Bruce Willis MP3 collection for my examples, and throw in a few more ‘Die Hard’ references along the way (what about the bit where he nearly gets pulled off the building by the helicopter? So exciting!).

Of course, if Bruce’s three daughters actually want their father’s digital music collection when he finally bites the dust, technically speaking – that is to say technologically speaking – there’s nothing to stop them, providing they are willing to contravene the iTunes term no one outside the Apple legal team and a few consumer rights groups concerned themselves with until the Sunday Times article. They could use a simple bit of software to strip out any meta data that links the AAC files to Bruce’s specific iTunes account and then divide the tracks up between them. Or just take three full copies of the entire collection and never speak about it again. Who’s going to know?

But what about the legalities? Well, on that front, what is more interesting than what happens to Bruce’s MP3s when he dies, is what happens if, in five years time, down on his luck after the follow-up to ‘A Good Day To Die Hard’ bombs even harder than its predecessor and Hollywood collapses (probably because the over restrictive licensing terms the studios put on their movies on iTunes sent everyone to Mega2.com for more freebies), Willis decides he wants to sell his entire digital music collection to someone else (Kim Dotcom, perhaps). Because the iTunes terms ban that too, of course, and the debate around the resale of digital content is much more timely, and really will gets its moment in court, unlike the fictional Willis v Apple litigation.

The major labels (who are really behind the offending iTunes term, which you’ll find in the small print of all Apple’s rivals in the download space too), will tell you the resale of MP3s is illegal as well. Though they’re unlikely to come after you if you sell on a handful of tracks (or even an entire iPod filled to the max with pop). They will, however, take an interest if you decide to start up a business offering a platform via which people can sell their MP3s.

The first such service I came across, Bopaboo, was forced out of business by the legal threat associated with its big idea before it had a chance to properly launch. Its successor in the US, though, ReDigi, is fighting harder. And although the major labels will tell you that their licensing agreements (whether attached to iTunes or an old fashioned CD) definitely prohibit selling on second hand audio files digitally, it’s proved to be a greyer area than they might wish.

ReDigi’s refusal to quit has proven irritating for the majors, particularly for EMI, which launched legal action against the site in January. ReDigi insists its service complies with US copyright law, mainly by relying on the so called ‘first sale doctrine’ (the bit of American law that allows the resale of CDs, which ReDigi argues should apply to digital music). But EMI argues that the resale service just helps others to commit copyright infringement.

In February, EMI failed to secure a summary judgement in the case, meaning it must go to a full trial, testing the digital company’s claims regarding the first sale doctrine and its relevance in the digital domain. And some clearly think that legal argument can be won, as ReDigi secured $760,000 in loans earlier this year, with its trial due to begin in October. While the judge hearing the case says he expects interesting topics to be discussed, and some unchartered water to be navigated, during the hearing.

So, even if we accept the ‘Bruce Willis to sue Apple’ headline is bollocks, the issues raised in the story are still relevant, and will almost certainly be debated in courtrooms in America, and probably elsewhere. The precedents set will be interesting and, should they swing in favour of the rights owners, we may see moves to alter consumer rights laws to compensate. After all, such laws ensured the right to resell CDs – something many labels were never that keen on to start with.

Though, that said, long term, how relevant? Bruce Willis is currently still very much alive of course. And my prediction is that he will live to 123 years old, which gives him another 64 years on this earth. Assuming he never really hits such hard times that he has to sell his MP3s (even when ‘A Good Day To Die Hard’ and ‘Die Hard 6: In A Coma But Not Dead, So It Still Counts’ bomb), what will his massive collection of digital music files really be worth to his descendants in 2076?

After all, by then MP3s will probably be amusing footnotes in the history books, and Apple will be a fallen giant operating a vintage computer repair shop somewhere in Texas. Music will no longer be something we own (or think we own) anyway, it’ll be something we access from vast databases of music via the services that will replace the services that replace Spotify et al. Which means Bruce Willis’ 128kbps copy of ‘Ooh Stick You’ by Daphne & Celeste will be of no interest to anyone.

So, we will almost certainly get legal clarity regarding the restrictive digital content terms that (almost certainly don’t) worry Bruce Willis so much. Eventually. Though, as is often the case in the digital domain, by the time the law catches up, it will probably be irrelevant.

Andy Malt
Editor, CMU

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