Thursday, October 04, 2012

Quem herda as nossas músicas no iTunes?

Who Owns Your iTunes Library When You Die?, por Doug Mataconis:

If your answer is that your estate will, you have guessed incorrectly:

Many of us will accumulate vast libraries of digital books and music over the course of our lifetimes. But when we die, our collections of words and music may expire with us.

Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.

Apple (US:AAPL) and (US:AMZN) grant “nontransferable” rights to use content, so if you buy the complete works of the Beatles on iTunes, you cannot give the “White Album” to your son and “Abbey Road” to your daughter.

There is apparently some discussion by estate lawyers to try to get around this problem by creating legal trusts that would be the owner of the online content, but I can’t see how that’s going to work. If, under the terms of your agreement with Amazon and Apple, the digital files are non-transferable, then I don’t see how an individual could transfer their digital content to the trust to begin with. From the perspective of Amazon and Apple, any agreement that tried to do that would be a legal nullity, and based on their respective terms of service, they would be right.

In reality, this is just another effect of the way that we treat copyrights and digital content under the law here in the United States. Technically, you’ve never actually owned any of the musical content on any of the media you’ve purchased, whether it’s a vinyl record, a compact disc, or a digital file. Before the digital era, though, you did own the physical medium on which the content was recorded. So, while you didn’t have the legal right to make copies of, say,that Led Zepplin album you bought in the 70′s, you did have the right to sell the physical record itself. The same rules applied to cassettes, 8-track tapes, and compact discs. Now, though, there is no physical medium to speak of that you can sell to a Used Records store, there’s just the digital content and the “no copying” rule still applies. Similarly, since a copyright holder has the right to set the terms of whatever license they grant to you when you purchase that digital file, they can set terms that say that what they are really selling you is the non-transferable right to possess a copy of the digital music file, not a property right in the music file itself. That’s why you cannot legally transfer it to your heirs when you die, because you never owned it to begin with.

Obviously, this is not a practical situation for the modern era. At some point, people are going to start realizing that they have less rights to their music than they used to and people will call for the laws to be changed. Of course, we’ve heard calls to change these laws many times in the past and they’ve mostly gone nowhere because the media companies and copyright holders have far more clout in Congress than ordinary Americans do and, for most people, this is an off-the-radar issue. So, the prospect for change isn’t very good unfortunate.

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