Hoping To Pass On Your iTunes Collection? Good Luck

Robert Siegel talks with Jonathan Zittrain, co-director of Harvard University's Berkman Center for Internet and Society, about what happens to your iTunes library when you pass away.

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ROBERT SIEGEL, HOST:

So far as we can tell, Bruce Willis, the actor, is not suing Apple for the right to bequeath his music collection to his children. Somehow that piece of misinformation gained undeserved credence in recent days. But untrue as it may be, the story has focused what struck some of us as much deserved attention on this question: Are the digital files that we buy on the Internet our property? Is my sound file of Oscar Peterson playing "Autumn Leaves" mine to leave to my children or do my rights to it expire with me?

Well, we figured Jonathan Zittrain must know the answer. He is a professor of law and computer science at Harvard, where he's also co-director Berkman Center for Internet and Society. Welcome to the program.

JONATHAN ZITTRAIN: Thank you.

SIEGEL: Are the sound files that I bought my property in the same way that, say, a compact disk with the same music on it is my property?

ZITTRAIN: Well, more and more, they're your property in the possession is 9/10 kind of spirit of things. Services have tended to go towards not having as many digital restrictions on what you can do when you pay for music and download it. So, in that sense, you may well be able to burn a CD, give it to your friends, bequeath it to your kids, that kind of thing.

But to the extent that we are finding ourselves renting our music, subscribing to our music, having Webcasts, having things like iTunes Match harmonize our music across devices, that is a service - you don't own that stuff. And should you stop paying your bill or should the terms change, you may find your access to that music in the Cloud gone.

SIEGEL: But in fairness, when I've bought music from the iTunes store, let's say, it doesn't say rent. It says buy. Does it say rent somewhere in all that fine print that I've accepted at some point?

ZITTRAIN: There is in the enormous amount of fine print and a lot of it is devoted to those new services, where you are in effect renting. And it's actually most clear in the movies, because sometimes you really do rent a movie for all of 24 hours, which is a great a very aggressive way to get you to watch a movie.

(LAUGHTER)

ZITTRAIN: And other times they call it a purchase and they say that you own it. But what you can do with it - by copying it to another disk, transferring it to somebody over the Internet - that can still run afoul of copyright law because, in fact, you are typically making a copy rather than dispossessing yourself of what you have. And if you're leaning on those services to manage your collection, which more and more people are doing, then all of that stuff in the license about owning it doesn't apply. You have certain limitations.

SIEGEL: But what's implicit, though, in what they're saying is that just having a collection of records, CDs, 78s - all this time that we've been handing such tangible property down to our kids, that perhaps that was legal either, is what you're saying.

ZITTRAIN: Well, transferring stuff without making a copy was protected explicitly by something called the First-Sale Doctrine, which is how libraries could get away with having a library of not just records, but books and lend them out to people; clearly impacting the sales of the book negatively as people share around one book, rather than each buying a copy.

But as soon as you're into the world of bits and you're trying to transfer those bits to somebody, if you're making a copy, it's much different than just transferring the object. And often you might find yourself not easily able to make a copy. The mileage varies a lot. And again, more and more, we expect stuff to just be in the Cloud waiting for us. And that copy in the Cloud isn't ours.

SIEGEL: So someone who's really worried about this might make a point of bequeathing his or her hard drive to their heirs, rather than the content of hard drive.

ZITTRAIN: And that kind of person would be like a survivalist putting a lot of canned goods into the root cellar.

(LAUGHTER)

ZITTRAIN: They're going to have that record collection. And then the only problem is their great-grandchild isn't going to have a record player or a CD player.

(LAUGHTER)

SIEGEL: Professor Zittrain, thanks a lot for talking with us today.

ZITTRAIN: Thank you.

SIEGEL: That's Jonathan Zittrain, co-director of the Berkman Center for Internet and Society at Harvard University.

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