The Daily Mail reports the Bruce Willis – he of Die Hard, Pulp Fiction, and, of course, “worst picture of the decade” nominated mega-flop Hudson Hawk fame – is said to be considering legal action against Apple, in order to be able to leave his iTunes collection to his daughters.
If he succeeds, he could benefit not just himself and his family but the millions who have purchased songs from Apple’s iTunes Store.
Willis has discovered that, like anyone who has bought music online, he does not actually own the tracks but is instead ‘borrowing’ them under a licence.
Most purchasers do not bother to read the details of the terms and conditions they agree to when buying an album but the small print makes it clear that music bought through iTunes should not be passed on to others.
At the risk of being wrong: Willis is not going to win this one.
European courts have been increasingly active in ruling that “first sale doctrine” – which states that exclusive rights to distribution are exhausted after the first sale – holds for digital goods, since a right to use a good for an unlimited period of time, when exchanged for money, is legally indistinguishable from a sale. This was most recently demonstrated when the ECJ declared in July that consumers have a right to resell downloaded software as “used”.
US courts, on the other hand, have been far more inclined to treat the licenses under which digital goods are sold as legally enforceable contracts. So, for instance, MDY v Blizzard, a case in which Blizzard Entertainment, the developer of World of Warcraft, sued a manufacturer of cheating software, was found in Blizzard’s favour in part because it was held that users are merely licensees, not owners, of the World of Warcraft software.
For Willis to win, he would most likely have to get the contract declared unenforceable, which would have far more wide-ranging effects than merely letting him pass music on to his daughters. For one, it would open the door to used sales of digital media, but it would also severely limit the ability of businesses to control how their digital goods are used. Whether this is a good thing or not depends on whether those businesses then change their offerings. But, as one example, would Adobe continue to sell student editions of their software if first sale doctrine allowed those students to resell the software at will?
We should have known it was too good to be true. The Guardian‘s Charles Arthur reports that Willis’ wife has denied the story, and that the Mail‘s reporting of it was most likely an uncredited lift from the Sunday Times. But where did the story come from? Arthur writes:
There’s an article from Marketwatch, from 23 August, which bears an odd resemblance – but it has no mention of legal challenge. It’s all talk about Estates and Wills.
Which brings us to a horrible pause: might it be that someone saw a mention of “Estates and Wills” and thought it was “estates and Willis“?