iTunes Music License: Is it Really Enforceable?

Is the iTunes Music License really enforceable? This is the question raised by F. Scott Kieff in a recent article for IP Law & Business.

According to Kieff, the issue is as follows: the iTunes contract for service allows the customer to copy a song for a small number of times--the license provides that users can burn an audio playlist for up to seven times. Kieff argues that this license provision conflicts with the doctrine of fair use as follows:

There are at least two key differences between fair use and the iTunes contract. First many commentators consider the fair use scope to be broader than the scope granted under the iTunes contract, covering a much broader amount of uses. Second, the borders of the fair use scope are fuzzy, coming from on of those "all things considered" multi-factor legal tests, while the scope defined in the iTunes contract is precise in limiting the amount of copyright to a specific number.

Kieff's argument gets even more interesting: he argues that the iTunes contract may be completely void due to the doctrine of federal pre-emption. Kieff explains as follows:

[T]he doctrine of federal pre-emption, which stems from the Constitution's Supremacy Clause, speaks very forcefully about the consequences of such a conflict between federal law, in this case copyright, and a state law, in this case enforcement of the iTunes agreement under California state law. Following established precendent, the state law may be unenforceable when it conflicts with the federal law. . . .the contract on which the iTunes business model largely depends may actually be void.

Kieff makes a fascinating argument in his article and highlights a problem that most practitioners dealing with copyright law have grappled with for years: the fact that U.S. copyright law was developed long before computers, software programs, or the Internet were ever contemplated. As a result, the theoretical and practical application of copyright law does diverge at times, as practitioners have developed workarounds to some of the holes that otherwise existed in the statutory law.

But does the fact that this dichotomy exists mean that a copyright license which is drafted to expressly allow for the creation of a set number of digital copies is void and unenforceable under the law? I would argue no: the copyright owner has the right to define the scope of its copyright license in the same way that a patent owner has the right to define the scope of its patent license. Indeed, if you look at the newly revised copyright office website, the Copyright Office has provided a question and answer page that addresses the issue of backup copies of digital files as follows:

Can I backup my computer software? Yes, under certain conditions as provided by section 117 of the Copyright Act. Although the precise term used under section 117 is “archival” copy, not “backup” copy, these terms today are used interchangeably. This privilege extends only to computer programs and not to other types of works.

Under section 117, you or someone you authorize may make a copy of an original computer program if:
the new copy is being made for archival (i.e., backup) purposes only; you are the legal owner of the copy; and any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred.

You are not permitted under section 117 to make a backup copy of other material on a computer's hard drive, such as other copyrighted works that have been downloaded (e.g., music, films). It is also important to check the terms of sale or license agreement of the original copy of software in case any special conditions have been put in place by the copyright owner that might affect your ability or right under section 117 to make a backup copy. There is no other provision in the Copyright Act that specifically authorizes the making of backup copies of works other than computer programs even if those works are distributed as digital copies.

This excerpt from the Copyright Office's website suggests that the Copyright Office believes that copyright law provides that you cannot make backup copies of downloaded music without the copyright owner's permission, even though the backing up of copies of computer programs for archival purposes is expressly permitted by Section 117. If my interpretation of the Copyright Office's text is correct, then a license would be required to make any number of copies of downloaded music.

So, the question becomes: does fair use extend to exempt the copying of downloaded music from constituting copyright infringement in some cases? I feel confident that the music industry would say "absolutely not." But would its position be correct? I think that Kieff has a valid argument that fair use probably should extend to permit copyright in some instances where the elements of the fair use exemption are met.

In the end, however, I take issue with Kieff's notion that a contract that specifically authorizes certain instances of copying would conflict with the fair use exemption as codified by federal law and therefore render the contract unenforceable due to the pre-emption doctrine. In my opinion, a copyright owner can and should define the scope of its license and expressly provide for certain instances of copying instead of leaving it to the licensee's interpretation of fair use to decide whether or not such copying constitutes infringement. I would argue that a well-drafted agreement is one that expressly states the terms in very clear language and leaves little or nothing to the independent interpretation of the licensee.

Despite my position on the issue, there is no question that Kieff presents an interesting argument. I suspect that we will see his argument again in a litigation proceeding at some point in the future.