Another Look at DRM-free Media

When Apple, Amazon and others encumbered their music with DRM, it cause all sorts of mayhem. People had issues playing music on and transferring music to multiple devices, DRM servers went down, causing music to be unplayable; in some cases, they even had to re-purchase their once legitimately purchased music.

Although the media industry seems to have an ongoing affair with DRM, they realized that it was affecting consumer confidence and the ability to really make digital downloads take off. When encountered with the choice of DRM and free but questionably legal downloads, many preferred the path of least resistance. They weren’t necessarily opposed to paying for media, but didn’t want to be hassled by all of the obstacles.

A calculated gamble, the industry started to release MP3s, unencumbered. They sounded good. You could play them anywhere. And if the DRM server went down there were no problems.  The media industry and its customers had found a truce, it seemed.

But like most interesting stories, this one had a twist. The media was unencumbered with technology, but there were licensing agreements one had to agree with in order to get at the unencumbered media. That is where, as they say, the devil was–in the details.

Take Amazon’s Terms of Use for its MP3 download service. Section 2.1 states, in part (emphasis mine):

Except as set forth in Section 2.1 above, you agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, license or otherwise transfer or use the Digital Content. You are not granted any synchronization, public performance, promotional use, commercial sale, resale, reproduction or distribution rights for the Digital Content.

In short, this means that although you can play it as much as you like, forget about selling it to someone else. There’s no selling that MP3 on e-Bay after you’re tired of it. You can’t give it to Grandma as a birthday present. You can’t trade it in for something else.

Contrast this with a traditional CD. You can go into any store and purchase a CD for cash. There are no licencing terms to deal with. You can sell it, trade it lend it, or even make a tacky wind chime.  You can do anything you want as long as you’re recognizing copyright law.

In the US, copyright allows for a balance between the copyright holder and the consumer of the copyright. The law recognizes that the copyright holder does not have exclusive rights to the work, insofar as they cannot completely control what you can do with it. One of those rights is the first-sale doctrine.

The first-sale doctrine basically says that once a good is legitimately acquired (i.e. purchased), the copyright holder has no say in what you do with it afterwards. You can buy one for Grandma, sell it to the guy down the block and even make one of those tacky wind chimes. You can do so because the law allows you to. It’s entirely ethical and it recogizes your freedom as an individual.

When you agree to terms of use such as those from Amazon, you voluntarily relinquish some of those rights. You’re making a trade-off decision: “I’m willing to give up certain rights for the convenience of sitting in my comfy chair and getting some instant gratification.”

As long as you go into that decision with all of the facts, that’s fine. But consider the long-term consequences. If this continues, the media aftermarket will be annihilated. No longer will you be able to get rid of that old stuff so you can have a few bucks for your new tastes. You will have contracted your rights away little-by-little until eventually, the media giants call all of the shots.

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  1. […] certainly isn’t the only one guilty of implementing the DRM through a contract rather than technology, but honestly, I hoped for better from a distribution that espouses to be […]

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