Q: Do We Own The Downloads We Buy? A: No

MQA has kicked up all kinds of controversy. One offshoot argument is the concept of ownership when it comes to file-based music—the MQA objection refers to the fact that we do not "own" the music we stream from streaming services. In MQA's case we're talking about Tidal but the same thing applies to every streaming service. To my way of thinking, this is a clear case of stating the obvious; streaming music is a service and if that service ceases for any reason, the music stream is no longer available. Case closed. But how about the downloads we buy?

With CD's (or any physical media), the First-sale doctrine applies in the U.S. In brief:

The first-sale doctrine is a legal concept playing an important role in U.S. copyright and trademark law by limiting certain rights of a copyright or trademark owner. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works (for example, enabling individuals to sell their legally purchased books or CDs to others).
We can legally sell CD's (LPs, books, etc.) that we've purchased because we own them. Here's the rub with digital copies—we do not own them, the first-sale doctrine does not apply, so we cannot legally sell them. This is an important point—when we buy a digital music download, we have the right to listen to it for our personal use. That's it.

I'm just going to include some legal language from one download site, Boomkat, because it's reflective of the language used for most, if not all, download sites:

12. MUSIC CONTENT

(a) RIGHTS GRANTED: Upon payment for the Music Content, Digital grant you a non-exclusive, non-transferable right to use the Music Content only for your personal, non-commercial, entertainment use subject to this agreement.

(b) RESTRICTIONS TO RIGHTS GRANTED: The Music Content is owned by Digital, its business partners, affiliates and/or licensors, as applicable. You must comply with all applicable copyright and other laws in your use of the Music Content. Except as set out in clause 11 (a) above you may not or allow others to redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-licence or otherwise transfer or use the Music Content. Digital does not grant you any synchronisation, public performance, promotional use, commercial sale, re-sale, reproduction or distribution rights for the Music Content. You agree to advise Digital promptly of any such unauthorised use(s).

Legally, you cannot even lend a download to a friend and since our download purchase does not include the right to transfer what we bought, you cannot even legally give your digital music collection away after you die1.

Do you remember ReDigi? In brief, ReDigi was going to be a place where you could buy and sell pre-owned downloads. Of course, the labels jumped on the service with legal action and ReDigi ended up losing its case (Capitol Records, LLC v. ReDigi Inc.):

The ReDigi case raised the novel issue of whether digital music purchases are eligible for resale under the first-sale doctrine. On March 30, 2013, Judge Richard J. Sullivan ruled in favor of Capitol Records, explaining that the transfer of digital data from one storage medium to another constituted a violation of copyright, because the copy was ultimately an unauthorized reproduction, and therefore outside of the protection of the first-sale doctrine.
ReDigi appealed the case (screen shot captured on 1.8.18)

Interesting, no? While I've made this argument before, I think it's worth repeating—since we do not own the downloads we buy, they should cost less than a CD. But they don't. And "hi-res" downloads, which we also do not own, typically come with a premium price.

When I moved into Manhattan after college in the 1980s, I had to sell most everything I owned to fund the move. This included my record collection (I know, I try not to think about it). But as hard as it was to part with my records, the money I got from the sale helped pay for things I needed more. So you could say, I would, buying LPs, in addition to the joy they provided for many years, was an investment. Some records I owned were worth more than I paid for them!

"...buying LPs, in addition to the joy they provided for many years, was an investment."
In our brave new world of music downloads, once the purchase is complete its re-sale value becomes $0.00. Of course we can always enjoy the music downloads we buy, but the good old days of buying music that retains some monetary value are over, unless we opt for the CD or LP2.

And that's a sad state of affairs, imo, and one that makes streaming music that much more appealing. Since we don't own the music downloads we buy, why not pay the $20/month for unlimited access to stream millions of CD-quality albums and call it a day? If said streaming service stops its service, just find another one.

For CD-quality and "hi-res" streaming, our choices are actually growing, albeit in baby steps (and even the size of those steps are geographically varied). In the U.S., we have access to Tidal HiFi (19.99/mo), Deezer HiFi ($19.99/mo.) and come this Spring, Qobuz Sublime+ (US price TBD). HDtracks still plans to launch HDmusicStream, an MQA-based hi-res streaming service, some time this year.

You may be wondering why I still buy downloads on a regular basis. My answer is simple—to support the artists. That's also why I buy my downloads from Bandcamp whenever I can because they give most of my money to the artist. I also buy LPs because I like listening to records, too.

Here's a secret—sometimes I stream music I've purchased/downloaded (I almost said "music I own") so that the artists get more money. I know it's not much but it's more than the $0.00 my downloads are worth.


1. It seems to me that any law's efficaciousness is measured by its enforceability
2. Seeing as many LPs come with a free download code, some offering CD-quality downloads, the LP is the better investment.

COMMENTS
bobflood's picture

Quoting roughly "with downloads you have the right to purchase, listen and delete".

After the great theft of all copyrighted material with bit-torrent type tools, this should not be at all surprising. The world is moving toward a future where it will not be easily possible to actually own artistic material of any kind on any physical medium.

Timcognito's picture

Streaming (like MQA/Warner) = top ten AM radio akin to the mid ‘60s; limited content with middlemen controlling artistic offerings to masses for maximum profit (zero incentive to seek out the new and different)
Downloads(like Bandcamp) = explosion of new unfettered diverse content akin to underground radio of the late ‘60’s leading to cultural revolution and intellectual stimulation and this time controlled by the artists to gain exposure

bobflood's picture

would seem to indicate that even backing up the hard drive that the download was originally placed on would be a violation of the law. It is a copy after all.

Timcognito's picture

Download = Distribution + Remuneration

DH's picture

For all practical purposes you do 'own" your downloads - for personal use.
The strict legality is meaningless. Everyone copies and backs up their own downloads. Please name me one person who has ever gotten into trouble for that.
And this is a major advantage of downloads over streaming: as long as I have a backup, my digital copy will always be available. With streaming that just isn't true - that album, or the specific version of the album that I like can disappear at any time from the catalog and there is noting I can do about it.

In addition, streaming opens up lots of issues of DRM. And no, I'm not talking about the ability to copy files. DRM means the rights holder can control how and when you listen to a file, on what type of equipment, and can also be set up to send back information about you.

That's one of the objections some people have to MQA it is designed with DRM in mind (look at it's patents) and clearly one of the ways the record labels intend to make money from MQA is to activate some of it's DRM abilities at some point.

Michael Lavorgna's picture
Downloads have no re-sale value and you cannot legally loan or transfer them. This is obviously not the case with physical media.

Re. DRM and streaming, I would suggest that streaming services are a *service*. You can stream for free or up to $19.99/mo for lossless streaming. If the terms of service change in any way, you simply stop subscribing.

Re. MQA, I'm not interested in discussing speculation.

Topher's picture

Anything connected to the internet is inherently unreliable. I don't know about other readers, but when I listen to music or watch a film (or read a book) I want to focus on the art; I don't want to be worrying about whether at the climax of a recording or a scene the thing is going to get the jitters.

You may say, "Well, my internet's fine," and it may be, but you can't be sure it'll stay that way: what about network neutrality, or what if you move somewhere more rural? You'll have spent a lot of money on a streaming service and have absolutely nothing to show for it.

Michael Lavorgna's picture
Or do you buy every movie you want to watch?
Topher's picture

Yes, I buy DVDs of films I want to watch. Of course, I also go to the cinema, sometimes. And I do stream music, and will do so long as Apple Music has a student rate of £4.99 a month. If I like a record enough, I'll buy on CD then copy it lossless to the computer.

(As someone who used to DJ I have a lot of records, too, but don't buy many these days.)

Michael Lavorgna's picture
I could not afford to buy or go see every movie I watch via Netflix.
DH's picture

Movies- I often only watch them once. Very few that I want to watch repeatedly and keep watching for decades.

And again, I didn't miss your point. We can legalize and lawyer up the situation all we want, but in reality we can copy and do whatever we want with our downloads as long as we don't distribute them to others, especially over the Net.

Question: ever jaywalked? It's ILLEGAL!! But I bet we've all done it, especially in situations where it isn't dangerous and we can't get caught.
And lets get real, we all do some "illegal" things with our downloads. So the technical illegality of some of these behaviors is irrelevant.

And I enjoy streaming. But record companies "pull" albums all the time. Some of my favorite versions are no longer available. If I didn't have downloads of them I couldn't listen to them.

And the "well you can just stop paying for it" is also a weak answer. Just because a product isn't perfect doesn't mean I don't want it at all. That's not the same as pretending it is every bit as good as owning - yes owning (in practical terms, because who is going to take it away from me?) a download.

Michael Lavorgna's picture
If you look at footnote #1, you'll see we agree on the point you are making. As far as the point I made in the article, you have yet to meet it in your comments. Let's try this:
Johnnie has $10,000 to spend on music. He buys $5,000 worth of downloads and $5,000 worth of LPs.

Johnnie gets a DUI and needs to raise money so he decides to sell his music. How much money can he expect to get from the resale of his downloads?

As far as movies go, my (weak) point was this - when you're at home deciding which movie to watch and you find one on Netflix, do you decide *not to watch it on Netflix* because some day it may not be available? Or because you may want to watch it again and who knows if Netflix will be around that second time?

In terms of "owning", if you look at the rights you have with the downloads you buy, you'll see you do not have ownership rights. ReDigi tested this by trying to become a marketplace for the resale of downloads, and they were shut down.

Cheers.

DH's picture

Clearly LP's are worth more. But I imagine I could get some small but significant amount of money for my digital collection - i'd just have to find the right buyer. There's a non monetary (time and effort) cost to a really large digital collection with lots of high res that I think would be worth something in a private sale. And anyway, I have no desire to expand my LP collection. Haven't bought one since the 80s.

My point about streaming was this: if there is an album or a version of an album I really like, I buy it. Both to support the artist and because I can't be sure it will continue to be available. Just in the last few years there have been several remasters of albums that I really like that are no longer available anywhere in any format. I'm very glad I bought the download, or I wouldn't have access to them anymore. The labels came out with a newer, inferior sounding (IMO) remaster and withdrew the previous one I liked. I imagine people who are really into a particular movie would do the same. It has little to do with whether I'd stream the album or the movie if it was available for streaming.

Michael Lavorgna's picture
From the article: "You may be wondering why I still buy downloads on a regular basis. My answer is simple—to support the artists."
Michael Lavorgna's picture
...in terms of "have absolutely nothing to show for it." I disagree. I've been listening to Tidal HiFi most days of the week for the past few years and that is exactly what it's about. A streaming service is a service, like Netflix, that one enjoys by using it.

What do I have to show for my time listening to Tidal? I've listening to thousands and thousands of albums, found a lot of favorites which I purchased, and have discovered tons of music and musicians I never would have heard of otherwise.

That is money very well spent, imo.

Topher's picture

No arguments from me here; as I say, I use Apple Music, and streaming services are a great way to discover new artists and records. But for me, streaming is always a 'try before you buy' thing. And this may just be a peculiarity of mine, but I find being offline far more conducive to aesthetic attention than being online. I'm not just worrying about buffering or jitters, I'm also worrying about incoming email from work or pop-up notifications telling me to update my operating system.

Re: films, perhaps I'm not as curious as I should be but I didn't find much on Netflix to interest me after the first couple of months. I'm usually happy getting two or three DVDs a month, and with Netflix so popular, they've never been cheaper!

Anyway, it's good to hear you're getting what you want from streaming, be it music or movies. Each to there own, as Dudly likes to say.

Topher's picture

sorry, *their*

Michael Lavorgna's picture
Thanks for sharing your thoughts. My taste in music and film is fairly voracious ;-)

Cheers

lestes's picture

I fear the loss of my curated Favorites list. However, even this list is getting a bit longish since they won't allow sub folders for me to organize...damn these money loosing organizations that give me daily joy.

The notion of an illegal backup made me laugh...thanks for that one guys! Arrested for a RAID system with cloud backup...it was bound to happen.

Streaming is amazing. Millions of songs at the touch of a button. Download albums for road trips and then replace them the next day for a flight...insane! What an age to live in!

deckeda's picture

But I imagine I'd buy less music, not more. I have 25K songs in a local library and don't listen to most of it "at any given time" if that makes sense. So yeah, it's about access. That's why those 25K songs are there, and thats exactly what subscriptions offer. Netflix has meant we buy and rent fewer movies.

The ownership thing, at that point or any other, becomes virtually meaningless. That being said, no one knows who possess any of my 25K songs, but if I died tomorrow my family would still know how to launch iTunes. And copy files.

ixterbrim's picture

Fwiw, in 2012 I moved west coast to east coast, and had to liquidate a lot of music; something I hadn't quite calculated was resale price on Cd versus Lp. Give or take, all else equal, Cd resale netted per-title about 10-20% of what the Lp resale produced.
Just in case anyone is on the verge of this momentous sort of activity... I sold maybe 2k cds and 6oo lps, and probably got somewhere in the $3.5k vicinity after multiple transactions.

(word of advice-- the smaller the batch, and the more numerous the transactions, the better; the buyer has total control over the offer in a bulk-buy situation. You won't have access to dozens of buyers in a bulk sale, so the buyer knows he can close inside of a couple of up-down offers; the logistics of having thousands of items to present & review are a bit daunting, and the seller is inclined to settle once in the ballpark. And the other advice: the only person doing any cherry-picking before sale should be you. Allowing any other cherrypicking is going to be counterproductive to your aims.)

Very glad I didn't do as many peers did in the oughts and digitize all cds to free up shelf space. As it happened I was able to sell cds for a reality-based reason, moving coasts, and not blocked on that because the business minds of our culture had decided to convert us to the vapor-ware that is the purchased download.
That said, I still did something similar to what my peers did in the oughts and ripped all viable music to hard drive before resale. (Unlike most of them, though, I ripped in lossless wav format; can't imagine downgrading the materials with less...)

All in all, I was able to transport maybe 2oo cd and 6oo lp after the selloff. The crème de la crème of course. (And hundreds more on laptop + backup drive, but that's probably illegal, so mums the word.)

Can't see the logic in the streaming model, at least above or beyond a Pandora-Premium sort of arrangement. Somehow owning the Aladdin's cave of treasures, even in much-reduced (albeit carefully self-curated) form-- is fundamentally different from viewing it thru a streaming window.

nick's picture

doesn't mean you don't own it

that being said, i agree with pretty much every point in the article. not cool.

MaryEtheridge1968's picture

You don't really own anything that is in a "digital form" nowadays. You can't even legally instal a custom software or modifications on your iPhone. Licences to read and agreements to agree are everywhere. Hard times for being a consumer...

Best regards,
Mary

Ali's picture

I prefer streaming most of the time; For buying 22 download from say HDTrack, I get one year Tidal subscription. I just buy those albums that I really like to have. Even after buying them, again I listen to same album in Tidal because it has the same sound quality and even more convenient. Besides I think industry charges us too much for download since they don't pay for physical material and distribution cast etc. and don't sure if artists get a good portion of this money. Maybe I am wrong but I totally agree with the article.

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