Amazon's MP3 store rips off your fair use rights

Fred sez, "Brier Dudley from the Seattle Times has read the fine print on those DRM-free downloads from Amazon. Looks like the 'user agreement' strips you of your fair use rights and lets the record labels sue you for breach of contract if you cross the line."
Amazon's contract says you "may copy, store, transfer and burn the Digital Content" for personal use. But then it goes further and specifies restrictions, saying you "agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-license or otherwise transfer or use the Digital Content."
Oh, ffs. All we want to do is buy MP3s, like we used to buy CDs and records and tapes. Stuff we could make some claim to owning. You'd think that a group of people as property-obsessed as the recording industry would understand the desire to own one's music collection and have all the rights to it that copyright normally confers on those who buy copyrighted works -- like the right to sell, edit. adapt, loan, modify, etc. All the stuff the law give law-abiding customers who buy stuff. Oh well. I had such hope for this one, too. Link (Thanks, Link)

See also: Amazon creates gigantic DRM-free music store!


  1. I can see how the above strips you of your rights as far as the first sale doctrine. But which of those “cannots” removes my fair use righs? I don’t see it.

  2. Ahh, I want to take my comment back. Fair use? First sale? The point is that you sign away some rights. My previous comment was more pedantry than anything else.

  3. And anyone is at all surprised by this? What would be the point of digital watermarking if there were no restrictions of what you could do? Was I the only one who caught that the RIAA came out in a court of law and said that ripping CDs was an act of piracy?

  4. Is it just me, or does it seem wholly understandable and reasonable to not let someone sell their .mp3 file? If they where transferable then anyone could say ‘my friend gave it to me’ to these files if they downloaded it for free on the interwebs. With CD’s, records, or tapes its not so easy, one would have to meticulously make an exact copy of the media, with files the computer does it with a point and click.

    Without some sort of constraint on the transfer of easily (a second grader can do it) copied media pirating would basically be fully legal. Big media makes less money then cell phone providers do on text messaging, perhaps you should be targeting the much much bigger thieves? Or just showing a media distribution method that works for everyone that doesn’t condone the -massive- piracy that plagues the industry today.

  5. Yawn. Every record, cassette, CD, and DVD says the same thing, somewhere, in the fine print. Why would you expect the terms under which MP3 files are sold to be any different?

  6. I’m with Spoon and Man on Pink Corner; I don’t see how this is any different from buying any other form of music or, for that matter, any original creative work (book, DVD, etc).

    What they’re saying is that by buying this, you can’t modify it and/or resell it. Isn’t it basically CC licensing, with a price tag, and without the ability to redistribute?

  7. I wouldn’t call it a failure. We can’t complain so long as we’re making progress. Us consumers want more and more all the time, and we’re actually winning this one – Amazon gets props, even if its not perfect.

  8. “Like the other detail: they don’t want you to buy from outside the USA.”

    That’s because illegal immigrants are buying the MP3s that Americans don’t want…

  9. The only part I have a problem with is the inability to re-sell the tracks if I end up not liking them or get bored with them. I can sell my used books, CDs, records or cassettes, but not my downloaded audio tracks?

  10. I hate to say it, but I don’t think we can have it both ways.

    Let’s back up a bit:

    The problem with DRM is that it tries to enforce a physical-world ruleset of scarcity on infinitely replicable data. One purchase, one copy, pretending to be physical goods. Which sucks, because data should be much more flexible than physical goods.

    So then we get rid of DRM, and we rid ourselves of artificial scarcity. But then we’ve lost the parallel to physical goods — our personal copy can easily propagate among our own domestic hardware, and there’s really no incentive to “rid” ourselves of the file’s presence in our personal ecosystems if we sell it to someone else.

    And so Amazon’s lawyers put this dorky bit in restricting the doctrine of first sale. I don’t like it either, but we’ve come so far recently from what was looking like it would be a future of hands-off filesystems and inaccessible encryption modules, I think this legal annoyance still easily beats what might have been.

  11. Well said, Spoon. The point you make is so obvious that you have to wonder about a post that assumes that this isn’t a problem. It’s like the “I wouldn’t have bought it anyway, just trust me” argument — “I wouldn’t sell this used mp3 more than once, just trust me!” Sure, it would be nice to be able to resell mp3s like used CDs, but it’s an inherent disadvantage to “bits only” delivery that’s not accompanied by bigbrother remote auditing of your hard drives and media players. You want to be able to resell it, you have to buy it on physical media. As long as the “bits only” version is a lot cheaper than the disc version, I think it’s a reasonable tradeoff. And if not, then like any other entertainment purchasing decision, just don’t buy it.

  12. What kind of person would even buy a “used” mp3 file in the first place? Please let me know because I’m selling a bridge he might be interested in.

  13. That’s a good point, Tubesoda, but what if I want to bequeath my MP3 collection to my fiancée when I die? I can’t legally do so under these terms — she’d have to wipe them off my hard drive.

  14. Compared to everything else, this scheme doesn’t seem bad at all, and seems pretty much in line with what the law is these days.

    The loss of the ability to resell the music is a bit disturbing, but I honestly don’t see how the economics of secondhand digital media sales could possibly work without some sort of DRM in place.

  15. Asking the user not to redistribute or transmit the work is bizarre and over-restrictive. What does ‘transmit’ mean? If I broadcast my songs over wireless to my airport express, or if someone streams it from my shared playlist in iTunes, is that transmitting it? This is just another one of those catch-all agreements that protects Amazon in the event that someone buys up a bunch of their content and then does something icky with it on a large scale, but from a user standpoint it’s an ugly, ugly agreement.

    On the other hand, kudos to Amazon for at least technically unlocking the music. Everyone is going to have to eventually follow suit. If someone could break down the movie studio mobsters to allow me to easily and legally rip my dvd’s into iTunes now, I would be well pleased.

  16. This isn’t just about “re-selling an MP3.” For example, let’s say you have a webcast (and you pay all the royalties, etc). Looks like you’re not allowed to “broadcast” from Amazon tracks.

    Or what if you want to remix a song into a home movie and upload to YouTube? Looks like the contract bars that, too.

    And what about loaning your iPod to a friend to listen to? Or your wife? The contract seems to forbid that, too.

    Copyright law is bad enough, but at least it has some flexibility built into it, thanks to fair use. This contract is far more brittle and less realistic than that.

  17. WILEY: Go one further. By playing the MP3 through speakers–thus “transmitting” waves of information through the air–am I violating the agreement? Sounds like an invitation to this: Sued for playing the radio.

    Pretty soon the record labels will kill off the market for speakers; you can’t play that music so other people can hear it! It violates the license!

  18. This might explain why AAPL has been on the rise over the past day or so. Somebody on The Street figured this out too and decided it won’t be such an ITMS killer after all. :)

  19. Tell me how it is considered an infringement if you “redistribute, transmit, assign, sell, broadcast, rent, share, lend etc…” yet it is completely fine for used music stores or Ebay sellers to actually resell CD’s and make a profit?
    Not that I am opposed to reselling but it seems to me the operative word here is ‘profit’. Clearly if a CD is resold the record company – much less the musicians – get zero money for this transaction. Yet that is within the law. However, lending or transmitting an MP3 with no money or profit involved is an infringement?
    I say as long as there is no profit gained then lend and share and broadcast all you want.

  20. It seems to me that being able to buy and resell goods, whether physical or not, is the cornerstone of our capitalist society. It sets a strange precedent for the future of digital information to restrict this right. It doesn’t seem like a big deal to give it up for a $1 song, but what about something that costs $1000 that you can’t resell? It would have some interesting effects on market price. It eliminates the notion of collector’s items. It also enables companies to pull media right out of existence (and historical record) if they are the one legitimate source of obtaining it– convenient if the material was highly controversial for some reason. And of course restricting the ability to share it in any way ultimately prevents it from having any lasting cultural significance.

  21. If half of a married couple purchases this music and then dies, is the other one a “criminal” now if they don’t delete it?

  22. The future of commerce, for good or ill, lies in renting, licensing, or borrowing products and experiences. The idea of “ownership” will be obsolete in another generation.

    At least that’s what Jeremy Rifkin argues in his wonderful 2001 book The Age of Access. For anyone interested in issues relating to intellectual property rights, public space, or creeping commercialism it’s highly recommended.

  23. Whether or not re-selling your mp3’s is worth anything, isn’t it just kind of scary to have this wide reaching restriction on a file that has your personal details attached to it?
    (or am I confused about what the ‘digital watermark’ would contain)
    Seems like this could be a bit of a trap. Consumers would clearly not all read the fine print and could unexpectedly be sued for doing things they thought they were free to do.

  24. Leaving aside whether such a user agreement is truly enforceable in every instance, it is a contract, which makes it legally different than the copyright notice on the back of a CD. In addition, the copyright notices on CDs (or at the start of a movie or DVD, or during the broadcast of a baseball game) often grossly mis-state the way copyright law actually works, because they ignore Fair Use rights entirely. More importantly in this context, you don’t have to sign an agreement saying you agree with the record company’s version of copyright law as a condition to purchasing the CD in the store.

    I think this is just the latest example of contract law — and consumer convenience — stealthily working its way, and potentially wreaking some havoc on, traditional confines of copyright law. It may be easy to use Amazon’s new service, and you may not be planning on committing piracy so what’s the big deal, but you are signing away some significant rights.

    Another example of this trend is Lucasfilm’s program for permitting fans to use Star Wars video in mash-ups with their own creative work. Many have praised George Lucas’ vision for seeing a way to embrace fans and make money off of their infringing efforts, but as Professor Lessig has warned, these fans sign away all their rights in order to do so. Another example of trading convenience (and access) for rights, via contract.

  25. Let’s back up a bit here. Many years ago, music had to be performed live to be heard by an audience. Then recording technology appeared, and wildly altered this real-world arrangement; it now became possible for a musician to play something once and yet be heard by an audience of millions. This increased the earning potential of the successful musician by a correspondingly staggering amount. Now, digital technology has simply taken that golden goose away (or it will, eventually, because DRM just cannot work in the long run – nothing digital is ever really secure). Is this really so bad? Why can’t musicians make money as they once did, by performing live, and distribute their music in digital form for free? What better form of advertising than tons of MP3s floating around the internet? Perhaps their live performances could include songs that wouldn’t be available digitally; this would increase fans’ incentive to attend in person. Sure, this would be a problem for the studio-produced, multi-track Moby type of performer, but it would also end the artificially technologically-enhanced ability of a musician to collect huge amounts of money for no work. It would also put the record companies out of business, so that all or most of the money earned would go where it belonged: to the music’s creator.

  26. I’d just like to point out that the arguments for artificial scarcity are valid. It is important to think about when thinking about DRM.

    “Yawn. Every record, cassette, CD, and DVD says the same thing, somewhere, in the fine print. Why would you expect the terms under which MP3 files are sold to be any different?”

    No, I’m not surprised. What bothers me is the fact that, a lot of the time, DRM involves some sort of tracking or identifying mechanism. Amazons service? No, not really. But a lot of DRM schemes involve identifying yourself explicitly. I know I would have been a little more apprehensive at 15 if, by copying my TMBG tape for my friend, someone could potentially catch me in the act and fine me for bajillions of dollars (I’m thinking of digital watermarking schemes here).

    I know that the scale is completely off in that analogy. But it scales fine. The way I was about TMBG or Black Flag at 15, if thousands upon thousands of people came up to me and were expressing an interest, and if I had the capacity, I’d gladly make each of them a copy.

    I generally don’t follow bands that follow the money, anyway.

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