Passing on the ephemeral.

December 9, 2005 4:26 AM

Who owns my mp3s when I die?
posted by Neale to law & government (26 comments total)

Where did you get them from?
posted by chrismear at 4:37 AM on December 9, 2005

Whomever you will your external hard drive to??
posted by k8t at 4:50 AM on December 9, 2005

There's more to this question, right?

Who'll own your other stuff? Are you bequeathing it to an individual? An institution? Are you defaulting to your state's (assuming US) laws of inheritance? We'd need some more info to know how to cleanly answer that question.
posted by Alt F4 at 4:51 AM on December 9, 2005

As the tags say, it's a DRM question. To know the answer, you'll have to check all those nasty License Agreements that come with iTunes and other assorted download sources, instead of just clicking "I Agree", Neale.

I think that, under most of the License Agreements, the rights to the songs actually dissolve, because you don't have the right to give/sell/lend/copy them to anyone else. So technically, I think your heirs would have to delete your entire library. I would actually read the damn things, but they're too boring, I suggest you do it yourself :)
posted by NekulturnY at 4:55 AM on December 9, 2005

Of course, all you really have to do is de-authorize your computer and authorize the computer of whomever takes possession of your music. At least that's what you would do for iTunes songs.
posted by Thorzdad at 5:51 AM on December 9, 2005

The same person who owns them now: the music studios.
posted by jellicle at 6:20 AM on December 9, 2005

Jellicle is on the right track. You don't own any mp3's that you didn't actually create. You have a license to use them, and sme correspondign fair use rights, if they are copies of sound recordings created by other people. Whether that license is transferable depends on the license itself.

The only legally clear situation, of course, is if you never die. Eventually, the copyright holder's rights will expire, and the sounds recordings beomce public domain. The key to this, of course, is that you must NEVER DIE.

On the other hand, if you're planning to shuffle off this mortal coil, make sure any music fans among your heirs have clear instructions as to the location of any and all mp3's, so that, upon your death, they can, um, oversee the deletion of all those mp3's pursuant to the license agreements. Yeah, oversee the deletion - that's what they'll need to do. They wouldn't want to copy them or anything.

If they fail to delete the mp3's in accordance with the license, all kinds of nasty things might happen to them if the RIAA finds out.
posted by mikewas at 6:31 AM on December 9, 2005

Since Neale has declined to provide any clarifying remarks, I'm going to assume the following hypothetical:

1. Neale purchases several CDs.
2. Neale personally rips the CDs to MP3 files and stores them on a hard drive.
3. Neale wills his hard drive to heir A and his CD collection to heir B.
4. Neale dies and the executor of his estate follows Neale's wishes.

The question is now "has Neale's estate committed copyright infringement?" After reviewing EFF's Copyright and Fair Use FAQ I believe the answer is "Yes."

This hypothetical largely involves two of a copyright holder's the exclusive rights, the right to reproduce and the right to distribute. The FAQ says:

Surprisingly, the legal status of "ripping" (making a MP3 format copy of a CD you own), and burning (making a CD-R copy of a CD you own), is not clear-cut. However, many lawyers believe these activities are legal if done for personal, non-commercial uses under the copyright doctrine of "fair use".

So it is likely that Neale himself, while alive, did not commit copyright infringement at Step 2. However, it is likely (and the recording industry certainly argues) that Step 4 would be a violation of the copyright owner's exclusive right of reproduction and therefore an act of copyright infringement. Thus Neal's estate would be committing copyright infringement.

How about if we change the hypothetical, rewriting Step 3 as follows:

3. Neal wills both his hard drive and his CD collection to heir A.

The most relevant portion of the FAQ says:

There's some argument about whether downloading MP3 versions of songs that you already own is fair use, and therefore not infringement. Some lawyers think this is implicit in the Sony Betamax and Diamond Rio cases. However, the only cases to have considered MP3s, the UMG v. MP3.com case (92 F. Supp. 2d 349 at 351-2 (S.D.N.Y.), and the Napster case (239 F. 3d 1004, (9th Circ, 2000)) did not consider this issue directly, so it's an open question.

Looking at the decision in UMG v. MP3.com case, MP3.com ran into trouble because they couldn't successfully claim that their copying was fair use. Unfortunately the decision didn't address whether MP3.com's distribution was infringement. In this second hypothetical Step 4 now involves a non-commerical distribution of copies of the songs on the CD to someone who already owns the songs (because heir A is also receiving the original CD). It is possible that Neale's estate would not be committing copyright infringement, although, as the FAQ mentions, there has not yet been any legal case that has directly addressed this issue. However, it could well be the case that this hypothetical is copyright infringement. If so, Neale's estate would again be committing copyright infringement because CDs do not come with licenses permitting this kind of distribution.

Neale's estate may well have to erase the hard drive before giving it to heir A even if heir A is also receiving all of the CDs that were used as the source for the MP3s.
posted by RichardP at 6:33 AM on December 9, 2005

Oh My God this is out of control.

here's my take (or at least how I think it should be):
The person or people who own the music are the person or people who wrote or recorded the music (or bought the rights to music written and recorded by someone else). The music is an intangible thing, you can not touch sound.
You own the bytes that make up the MP3s, provided they are on your hard drive. You own the plastic disc of the CD or the vinyl of the record, if you bought and paid for them. You own the magnetic or digital information that makes up the songs, but you will never own the songs (unless you wrote them), and the person who does should be paid for you listening to them. This is why ASCAP and DMI exist.

So to answer your question, when you die, your MP3s belong to whomever you will them to. Just like that box of Winger cassettes in your basement.
posted by bradn at 8:53 AM on December 9, 2005

You own the bytes that make up the MP3s

I don't think that's true, bradn. Because when you buy those mp3's there's a contract attached that's called License Agreement, in which you agree to curtail the extent of your rights over the mp3 (the bytes) that you buy. As I said, you have to check the DRM for every mp3 separately to see if and how you can pass them on, but my guess is that you can't.

After checking the DRM on iTunes, it seems that you can share your account with members of your family, so the solution would be to bequeath the account (and the rights to the mp3s) to one of your heirs or all your heirs.

Or, if you assume that the account is already owned by you and your heirs together, your death has absolutely no impact whatsoever on the ownership/license to your songs. That's an interesting construction, by the way, not unlike a tontine.
posted by NekulturnY at 9:21 AM on December 9, 2005

The only legally clear situation, of course, is if you never die.

So, speaking of potentially legally immortal entities, could NealeCorp or NealeTrust buy mp3s and keep their status legal for the onwers or trustees?
posted by weston at 11:54 AM on December 9, 2005

These liscence agreements- are they gonna hold up once they start getting tested?
posted by Eothele at 12:57 PM on December 9, 2005

RichardP, I have to disagree. Whether you acquire your MP3s legally or illegally, you do not violate copyright law when you give somebody the hard drive on which your MP3s reside. The simple reason for this is that in order to violate copyright law, you have to copy something. If you give somebody your collection without copying it, you do not violate the law. (Likewise, I do not violate copyright law when I sell you a book that I own.) Thus I don't think there is any problem with giving somebody your MP3 collection at any time, whether you are dead or alive.

But if you give them a copy of your MP3 collection (or keep a copy for yourself before you die), then you are almost certainly violating the law.
posted by huzzahhuzzah at 2:20 PM on December 9, 2005

huzzahhuzzah, unlicensed copies were made in both of my hypothetical examples. Remember, in both of my hypotheticals Neale purchased CDs not MP3s. In Step 2 of both hypotheticals copies (in MP3 format) of the songs on Neale's CD collection were made. These MP3 files are unlicensed copies of the CD contents. Only fair use (or other legislation) prevents these copies from being copyright infringement.
posted by RichardP at 2:56 PM on December 9, 2005

RichardP, I also disagree. As you acknowledge, "it is likely that Neale himself, while alive, did not commit copyright infringement at Step 2." So set aside the question of ripping MP3s from CDs. The question is whether the transfer to Neale's heirs of whatever rights he has in the MP3s is itself infringement or a violation of a license agreement. It's certainly not infringement, because as huzzahhuzzah points out, you can freely transfer copyrighted works so long as you don't keep a copy for yourself. Whether it violates any relevant license agreements depends of course on what those agreements say. I suspect they do not prohibit such a transfer, but I don't know the answer.

As an aside, the MP3.com case is not on point because MP3.com was making copies of audio files and distributing them. In the hypothetical, Neale is not copying MP3s for anyone else, but is just passing them along through his estate.
posted by brain_drain at 3:57 PM on December 9, 2005

Set up a small company. Buy all MP3's and CDs for that company. When you die, the company will still have ownership of the MP3s, and whoever takes ownership of the company will then be able to play the MP3s.

For example, if I die, nobody can use the software I've purchased as an individual. If my boss dies, then the company I work for can continue to use the software purchased by the company.
posted by seanyboy at 5:10 PM on December 9, 2005

As you acknowledge, "it is likely that Neale himself, while alive, did not commit copyright infringement at Step 2."

Yes, but that is only because the doctrine of fair use protects that activity.

The question is whether the transfer to Neale's heirs of whatever rights he has in the MP3s is itself infringement or a violation of a license agreement.

Ah, but Neale had no rights to the MP3s, he was only protected by doctrine of fair use. This protection is non-transferable, although the recipient may also be eligible for the fair use exception (which is why the second hypothetical may be non-infringing).

It's certainly not infringement, because as huzzahhuzzah points out, you can freely transfer copyrighted works so long as you don't keep a copy for yourself.

Ah, but in my hypotheticals Neale's estate did keep a copy, namely the original CD.
posted by RichardP at 5:27 PM on December 9, 2005

I agree with you to the extent the MP3s and CDs are separated (your first hypothetical). But if they are transferred together (your second hypothetical), there is no copyright violation. Who says fair use protection is non-transferable? If I write a book that is a parody of a copyrighted work, my book is a fair use, and I can sell it, give it away, or will it to my heirs. Why should MP3s be any different if I give them to someone with the original CDs? Same goes for backup copies of music, videos, etc. -- these are fair uses, but why shouldn't I be able to pass them along to someone else with the originals? How does this hurt the copyright holder in any way? Where is the copying?

I just don't see any plausible argument for infringement here.
posted by brain_drain at 5:52 PM on December 9, 2005

Who says fair use protection is non-transferable? If I write a book that is a parody of a copyrighted work, my book is a fair use, and I can sell it, give it away, or will it to my heirs.

My fault, that remark of mine was confusing and arguably wrong. Fair Use is a four-factor balancing test. I can't sell a book that includes, as a quote, the entire contents of another book. However, there is precedent for making legitimate entire copies of a copyrighted work if I restrict myself to personal, noncommercial use. So, if I'm making an entire copy, I can't transfer the copy to someone else because my use no longer meets the balancing test (unless, perhaps, if the recipient is eligible their own fair use exception).

Why should MP3s be any different if I give them to someone with the original CDs? Same goes for backup copies of music, videos, etc. -- these are fair uses, but why shouldn't I be able to pass them along to someone else with the originals? How does this hurt the copyright holder in any way? Where is the copying?

Well copying certainly has occurred, since now more than one copy exits. But, I agree, I think this should be covered by fair use, it's just that there has not yet been any legal case that has directly addressed this issue.

An interesting hypothetical would be "is it legal for me to sell a book that includes, as a quote, the entire contents of another book if I include a legally purchased copy of the second book along with my book?" I think the answer is "yes," but the recording industry has currently taken the opposite position (see, for instance, the legal cases currently surrounding the "family friendly" DVD industry which generally include a legitimately purchased, but disabled, original DVD with every sanitized DVD they sell).
posted by RichardP at 7:16 PM on December 9, 2005

RichardP, you are conflating the possibility of original infringement with the later non-infringing transfer of the works. Under the Copyright Act:

the owner of copyright ... has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 USC sec. 106. Simplifying and spicing up your hypothetical somewhat, let's imagine:

1. Having never purchased a CD in his life, person A obtains 10,000 mp3s by downloading them on Napster, and stores them on his hard drive.
2. Person A then gives his physical C drive to person B.

Step 1 is clearly infringement, as Person A is illegally reproducing copyrighted works. See section 106(1). Person A could undoubtedly be held liable by the owner of these works (if the owner were to bring suit).

Step 2, however, is clearly not infringement. Why? Because it doesn't violate any of the terms of section 106:

1. Person A did not reproduce (copy) his MP3s when he handed his hard drive to Person B.
2. Person A did not make a derivative work.
3. Although person A distributed copies of the copyrighted work, he did not do so "to the public by sale ... rental, lease, or lending." Hence the distribution does not violate 106(3).
4. He has not performed the works publicly.
5. He has not displayed the works publicly.
6. He has not displayed the works publicly by means of a digital audio transmission.

Hence, A is not liable for transferring his hard drive to B.
posted by huzzahhuzzah at 8:50 AM on December 10, 2005

Neale is in Australia, so US law doesn't apply, making all of this moot.
posted by solid-one-love at 2:34 PM on December 10, 2005

huzzahhuzzah, it is not clear to me why you believe a distribution "to the public by sale or other transfer of ownership" has not occurred in Step 2 of your hypothetical. You acknowledge that a distribution has occurred either by sale or other transfer of ownership, so I assume you either believe Step 2 is covered by the doctrine of first sale or that Step 2 does not constitute a distribution to the public. You're probably arguing that the distribution must be a distribution to the public, and that it in this case, it is not. However, I'll cover both possibilities.

I'd argue that Step 2 is clearly not eligible for the exemption provided by the doctrine of first sale since if the reproduction is unlawful (as Step 1 clearly was) then further distribution of the unlawful reproduction is not allowed under the first sale doctrine because the copy distributed would not be one "lawfully made" under the Copyright Act, as required by the statute (see § 109).

I'd argue that Step 2 is a distribution to the public. The case law interpreting "publication" provides guidance as to what constitutes distribution to the public. To qualify as non-public the distribution must qualify under the doctrine of limited publication - to a restricted number of people and for a restricted purpose (usually noncommercial in nature). Under the doctrine of limited publication, a distribution is not public if it "communicates the contents [...] to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale..." To qualify as a selected group someone receiving the work must be more than just a customer self-selected by his desire to purchase the work. Situations where courts have found selected groups include: distribution of manuscripts by authors to a small collection of friends for feedback, distribution of floor plans to contractors so they can prepare bids, distribution of advance copies of works to colleagues for criticism or review, distribution of samples to potential customers, and distribution of promotional material to dealers.

In reference to your hypothetical, even if we assume that person B is a friend of person A and that no money traded hands there is still no indication that person A communicated to B that his use of the MP3s was limited to a particular purpose and that he could not further copy, distribute, or sell the MP3s. Thus Step 2 in your hypothetical does not meet the terms of the doctrine of limited publication and hence is a distribution to the public.

solid-one-love: we invented our own hypotheticals when Neale declined to provide the details we needed to answer his question. For instance, U.S. law might apply if Neale's heirs resided in the U.S.
posted by RichardP at 8:36 PM on December 10, 2005

To reply to solid-one-love: Australia, the United States, and 158 other countries have signed the Berne Convention, which is fairly similar to US Copyright law. As I understand it, however, there is no distribution right under the Berne Convention; so international law does not prohibit giving your harddrive to another as a gift. (But I don't know enough about international copyright law to be sure about this.)

RichardP, I agree that distribution is the largest potential problem here. But I disagree that gifting the harddrive to your heir is distribution "to the public" within the meaning of 106(3), even under the "limited publication" doctrine. First, your heirs are quite obviously a "selected group": You selected them by putting them in your will, and you are only giving your harddrive to one person, which is not a "group" as commonly understood. As for the "limited purpose" requirement, the limited purpose need not be explicitly communicated. Rather, this can be implicit. And because it is obvious that the recepient of a harddrive containing bootlegged mp3s has no right to copy, publish, or sell those mp3s, the limitation requirement may well be met. Admittedly, this seems less than clear, and it would not surprise me if a court were to come out either way on this question.

Finally, Neale originally asked "Who owns my mp3s when I die?". Even assuming that (1) you obtained your MP3s in violation of copyright law, and (2) you transferred them to your heirs in violation of copyright law, your heirs would still "own" the mp3s until the copyright owner (RIAA) brought suit, won, and convinced a court to impound your harddrive. (RIAA would also need to bring this suit within a few years of your death.) All in all, this seems pretty unlikely to me.

So the short answer is, "Your heirs will probably own your mp3 collection."
posted by huzzahhuzzah at 6:39 AM on December 12, 2005

Huz: the Berne Convention specifically allows its signatories to have their own copyright laws. As such, citing the law in one country does not indicate the law in another.

In Canada, which is a Berne signatory, it is completely legal to borrow a CD, copy the CD, return the original and keep the copy. I have five bucks that says that the above would not be legal in the US.

So my point stands, I think; the hypotheticals about what is legal in the US aren't really relevant. Nobody has yet explained his situation as an Australian. The question has not been answered.
posted by solid-one-love at 4:16 PM on December 12, 2005

RichardP's analysis is wrong, in my opinion.

When you legally purchase a mp3, it becomes a legal asset of the owner. When a person dies, the estate passes through testamentary or intestate succession (assuming there is no ademption issue). In effect, the legal assets of the owner become the legal assets of the beneficiary. There is no copyright infringement by the decedent. Nor is there any copyright infringement by the beneficiary since there is no purchasing/giving/copying/etc. The transfer places the new "owner" in the shoes of the old owner as a matter of law.

When you purchase something, you receive legal title to it. That legal title survives the owner unless otherwise contracted away or is a non-probate asset. A good isn't "given" to a beneficiary. The ownership transfers by operation of law, and the beneficiary has the same color of title as the decedent.

There is no issue of copyright infringement assuming legal ownership of the copyrighted materials by the decedent.

RichardP's analysis might be right when looking only at the DMCA and addressing giving something away. But the laws of property regarding wills are the determining factor here. The transfer of legal title does not implicate copyright laws.
posted by dios at 11:20 AM on December 13, 2005

Thank-you to everyone who wrote back - a work trip to another state kind of interrupted me giving any further details.

Here are some categories of MP3s that I own:

1. Those that have been "ripped" off CDs
2. Those that have been "bought" via the internet
3. Those that have been "borrowed" from friends

When I die, which of these categories can I legally will to my heirs, in Australia or in the US.
posted by Neale at 2:46 AM on December 15, 2005