• The Legalese of High Resolution Music Downloads

     

     

    When I was working on the article about used music in a world without physical media I got to thinking about the legalities of it all. Is it legal to sell downloaded music? If the music doesn't have any DRM I am free to use it how I chose, right? I sought to answers these questions by digging a little into some of our favorite high resolution download sites like iTrax, HDtracks, Linn Records, Naxos, and MusicGiants. Read more for the interesting details.
    When I began downloading content without Digital Rights Management I assumed I was free to use it as I pleased I thought I owned the music free and clear. I've always stayed far away from the subscription models that require a current subscription to listen to the music already downloaded. Or, so I thought. I'm certainly no legal expert in this area, but I took a shot at reading the Terms and Conditions of the aforementioned download sites to see if my assumptions were correct.

     

    I began with the new high resolution DRM-fee site HDtracks. After parsing through the usual lengthy legalese I copied what I thought was pertinent to this article.


    "b. Security. You understand that the Digital Store, and Products purchased through the Digital Store, do not utilize any digital rights management or DRM.* As such, you, the consumer, hereby agree to adhere to the laws of the protecting copyrighted intellectual property and shall refrain from illegally copying, selling or otherwise exploiting the Products in any manner.* Violations of US Copyright Law may result in civil and/or criminal liability."

    Link to full T&C


    HDtracks appears to have a pretty reasonable policy. To me this paragraph simply says to follow the copyright law already established. What I can't glean from this is whether or not selling the music is prohibited. The paragraph says "illegally selling." Does that mean there is such a concept as legal selling? Not sure, but I'm going to guess there is no such this as legally selling digital downloads. (By the way when people refer to music as digital downloads isn't the word digital a little redundant?) I thought all DRM-free sites would have a similar policy. I guess I was wrong.

     

    Next up is Linn Records.


    "You may not sell or offer to sell the downloads, including but not limited to, posting any downloads for auction, on any Internet auction site. All downloads are sublicensed to you and not sold, notwithstanding the use of the terms "sell," "purchase," "order," or "buy" on the site or in these Terms and Conditions. The delivery of a download does not transfer to you any commercial or promotional use rights in the Product."

    Link to full T&C

    Linn appears to remove all ambiguity in its Terms and Conditions. That is cool with me, but what the T&C say is not very cool with me. If I'm reading this correctly I don't even own the $30 album I downloaded from them! I just sublicensed it from Linn and I'm supposed to disregard the terms "sell," "purchase," "order," and "buy." Love the music and the quality of their downloads, but the T&C are a little archaic. Will I still "purchase" music from Linn? Most likely I will, but I will think about the fact that I really don't own what I paid for.

     

    Naxos and iTrax

    These two sites have no published Terms and Conditions surrounding the music downloaded from their sites. I've purchased from them, but I must admit I didn't read anything I clicked through on the way to downloading my new music. Thus, I have no idea whether I own the music or I am renting it etc...

    Link to iTrax General T&C

    Link to full Naxos Terms of Use

     

    Last up is MusicGiants

    MusicGiants appears to have nothing other than the standard terms that say to obey the licensor's copyrights. But, MusicGiants continually refers to everything they do as a service. Sure, they don't own any of the copyrights and are just a content provider. This does make the term service appropriate. However the term service in the context of music downloads can be a little scary. As the following paragraphs from their Terms suggest, my apprehension may be warranted.

    Link to full Terms

    d. You acknowledge that some aspects of the Service, Products, and administering of the Usage Rules entails the ongoing involvement of MusicGiants. Accordingly, in the event that MusicGiants changes any part of the Service or discontinues the Service, which MusicGiants may do at its election, at any time, with or without notice to you, you acknowledge that you may no longer be able to use Products to the same extent as prior to such change or discontinuation, and that MusicGiants shall have no liability to you in such case.

    b. Termination of the Service. MusicGiants reserves the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice to you, and MusicGiants will not be liable to you or to any third party should it exercise such rights.

    This is a little scary as I previously mentioned. Fortunately MusicGiants has been around for a while and the people there are first class. I will certainly continue to purchase music from MG without worrying about these two paragraphs. Just to be clear, my opinion here has absolutely nothing to do with the fact that MusicGiants has been very generous in providing Computer Audiophile readers with free music. It is pretty obvious I would have no credibility if I ignored the MG Terms or sugar coated them in anyway.

     

    I am pretty certain if we all read the Terms and Conditions from most companies we do business with we would be apprehensive at first. In reality we all agree to Terms much worse than these everyday and we probably don't even know it. Anyone have a credit card (hint, hint)?
    Comments 7 Comments
    1. Innertuber's Avatar
      Innertuber -
      And Markr it gets further complicated.<br />
      <br />
      Just because, for example, Linn say's that is their position does not mean it's enforceable, nor do I have a clue what the consent to agreement issues are. This stuff is written by lawyers for lawyers and most all would agree under challenge anything can become unclear, especially w/o the buyers consent to agree in the first place. No clue what the digital consent rights are for either party on a download. I'd guess they bet most consumers won't pay to fight the text and if they prosecute the consumer would settle.<br />
      <br />
      I'm for sure no expert, but paying for a download would seem to imply ownership unless it's a clear subscription. I suspect disclaimers hidden in fine print might not be good enough for a online operation. They can control that by not letting you download to save, rather download to listen.<br />
      <br />
      This is a fun topic because I think it's way beyond where they want to fight right now, having dealt with the file sharing issues and all. Just my two cents is that they have enforcable rights under copyright protection and the legal systems boat is currently floating in that sea.<br />
      <br />
      Illegal violations of music rights are already in place. If reselling music CDs or LPs was illegal, as some might imply or question, then I must believe that the large companies would have gone after the stores doing this long ago. Forget the internet, there are brick and mortar stores. <br />
      <br />
      Ditto for downloaded, but it does get more interesting given the text Chris dug up. My observation would be that they are all sorting this out on their own, rather than relying on tested cases. Just look at the differences in approach.<br />
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      You can put the moon is made of green cheese and worms fly in the boilerplate and it will be there until somebody challenges it, which in that case their internal or consulting attorney would say don't be silly, point being if it were my company I'd have stern language too. <br />
      <br />
      Rattling a big sabre is always a good start and it makes the defendant have to get it tossed (spend $$$ on lawyer to fight).
    1. The Computer Audiophile's Avatar
      The Computer Audiophile -
      Certainly a thought provoking topic and I think both of you guys raise very good points. Thanks for the posts.<br />
      <br />
    1. Poo's Avatar
      Poo -
      It's a simple copyright issue... you aren't purchasing any rights to the media, other than the right to listen to it.<br />
      <br />
      The only copyright on a source of media that I'm aware of which is more relaxed, is for photography. Short version is that photography (and some print media) only has a valid copyright for 50 years, unless other complex terms have been established for that photo (such as certain works deemed to be 'art' rather than 'photography' for example - often the case for Gallery or Museum pieces).<br />
      <br />
    1. wappinghigh's Avatar
      wappinghigh -
      Chris I found this great reading. Thanks! I've also visited all the high def sites I could find. Just goes to show what a dogs breakfast all this is!<br />
      <br />
      Different formats<br />
      Different resolutions<br />
      Some not available outside US<br />
      Some DRM free others not<br />
      Extremely limited choices of music.<br />
      <br />
      The music industry and it's lawyers and self imposed "legalese" sure is making a real hash of all this! Look at high def music (no standard format whatsoever) compared to high def video (blueray now rules)<br />
      <br />
      I really hope this comes back to bite the music industry bigtime. They deserve to be trashed on this. At least these high def sites are making a go of things and blazing the trail forward. My favorites are Linn, High def tapetransfers and Deutcher Grammophone. They seem to be further along legalese track, I guess because they are simply distributing their own copyrighted material (and artists)...in case of hdtt this must have expired due to time.<br />
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      In any case as far as I'm concerned the other bigger labels can all go jump............
    1. The Computer Audiophile's Avatar
      The Computer Audiophile -
      Hey wappinghigh - Sometimes I feel like we are living in the stone age, but with all the technology to go to Mars and back. The record labels could re-sell their catalogs if they offered a good selection of music and did not cripple the downloads. <br />
      <br />
      You do bring up a good point about the lack of a standard in the audio world. I've thought about this fact for a while and I think the audio world's unwillingness to change is also hurting them here as well.<br />
      <br />
      I've been addicted to HDtracks.com lately. Uncompressed AIFF music without DRM and complete albums for $12. Now if they only had more music!
    1. markr's Avatar
      markr -
      24 / 96 is the new standard. Argument over.<br />
      <br />
      ...... now if it were only that simple. I think that the opinion that 16 / 44.1 audio is 'good enough', has to die among more engineers before we will see enough positive progress. Maybe getting more of those engineers to listen to HDDT downloads and stop pecking at their calculators would help.<br />
      <br />
      I keep asking HDDT for a couple of choices for Tchaikovsky's 'Pathetique'.......<br />
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      ....Deutsche Grammophon eh? I can't WAIT until they get off of their MP3-limited butts for downloads..... I have an aged Bernstein vinyl version of Pathetique' and once heard a von Karajan one that I would swoop up in a second if they were offered in a decent digital format. Both were on DG.<br />
      <br />
      markr
    1. JoeAnne11's Avatar
      JoeAnne11 -
      Honestly I think we could have an <a rel="follow" href="http://www.smartspacepartners.com/sublease-agreement-template/">sublease agreement template</a> to all the music on the internet, because people download it anyway so why not to make it legal. This is my opinion regarding this kind of things. Anything more is up to you.<br />
      <br />