Digital Download Services — How Ugly Are The Licenses?

Consider Boomkat. They’re very specific about what you can do with them: put them on up to three computers, three portable music players, and burn on up to five CDs. They say that you permanently own the tracks you purchase, but at the same time they’re owned by Boomkat and the other parties involved — labels & artists. That is more or less consistent with the ownership of physical objects.

But they also say “the Service and the Tracks are solely for personal non-commercial use.” Which means you can’t use them on mixtapes, mix cds, or DJ mixes for which you charge money. On the other hand, it also appears to prohibit playing the tracks as part of a DJ Set, which is rather the point of buying dance music in any format, unless I’m reading that sentence wrongly?

Beatport, oddly, doesn’t have an license statement anywhere. In their FAQ they state “In the United States and UK buying a track from the site is just like buying a record from the record store. The same legal implications are in effect.” But I’m not sure that’s actually an accurate statement to make globally. It also doesn’t address the fundamental difference between physical media and digital media: owning a record or CD is a zero-sum game — if it’s loaned, or sold, or stolen, someone else has it and you don’t. I’d really prefer that they have some actual legal statement about what it is they’re selling.

Amazon terms of services (as listed on TOSback.com) are as restrictive as Boomkat with respect to public performance: “…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.”

That seems to preclude me playing any MP3’s I’ve bought from Amazon when I DJ, or do a radio show, or put up a DJ mix for download. Which I don’t think really makes any sense; if I play something on the radio, the station has arrangements with licensing organizations to compensate the license holders, and any bar or performance space that operates as a business pays for a similar license to present music. Not only that, the Amazon Terms Of Service are more restrictive than Boomkats, even though they apply to exactly the same product.

Can Amazon actually add restrictions on the use of items they sell? They are, in fact, the middleman in a transaction between me, the buyer, and the holder of license, the record label. Do they have any say at all in how I use digital downloads? And what about artists whose music isn’t covered by a standard copyright – e.g. Throbbing Gristle who, from what I’ve read, don’t copyright their music? I’m sure there are artists whose MP3s are sold by Amazon.com that use a Creative Commons license, which can conflict in several ways with the Amazon TOS.

I’m not an Intellectual Property lawyer by any means, so I don’t know what to think. But all musicians are faced with a disruptive change that’s happening with respect to how music is distributed, and none of us know where we stand, really. I’m all for musicians to get paid for their work. Hell, I’d like to get paid for my work. But going forward we’re going to have to come up with some sort of fair, sustainable business model in a world where digital copies zero out the cost of reproduction and distribution.

I think in the near term, if you want to support musicians, you should buy their music rather than download it illegally. More than that, you should try and buy it directly from the musician if at all possible, because that way, they get more money than if you buy from a record store or on-line site. I just bought a series of EPs from Cooly G, by sending money to her directly via Paypal. She also has a couple of records out on Hyperdub, but I bet she’s made more money selling directly to her fans than she has from stuff released via Hyperdub.

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