Willis highlights download ownership issue

October 2012



Bruce Willis is said to be considering legal action against technology giant Apple over his desire to leave his digital music collection to his daughters having 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 – Willis he is keen to be able to hand it on legitimately to daughters Rumer, Scout and Tallulah and one approach he is reportedly considering is to ask his legal team to establish family trusts as the “holders” of his downloaded music. Another option is to support ongoing legal action in five US states to give downloaders more rights to do what they want with their music. Similar problems apply to the digital books that millions download to electronic reading devices such as Amazon’s Kindle. Solicitor Chris Walton told news.com : “Lots of people will be surprised on learning all those tracks and books they have bought over the years don’t actually belong to them.

The New Statesman took the view that Bruce Willis would not succeed in court. This is because:

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 the (US) first sale docttine allowed those students to resell the software at will?

There are relevant precedents by US courts, such as Vernor v Autodesk and MDY v Blizzard, in which it was held that the grant of a licence is not tantamount to a transfer of ownership. However, there has been a recent decision which may (perhaps) support a conclusion to the contrary. In its 2011 ruling in UMG v Augusto the US District Court for the Ninth Circuit recalled in fact that “the mere labeling of an arrangement as a license rather than a sale, although it (is) a factor to be considered, (is) not by itself dispositive of the issue (of whether the first sale doctrine may apply).

However it should be noted that Willis’ wife Emma Heming denied any legal action via Twitter, and the Guardian said this “Is someone seriously suggesting that Willis has bought all that “vast collection from the iTunes Music Store? Given his age (57) one might have just a faint suspicion that most of his collection would be on CDs. (This is a guess, but given that Willis grew up in the age of Vinyl, and went through the Ages of 8-track, Cassette tape, MiniDisc, and CD before arriving at the present Age of Download, wouldn’t a lot of his stuff be on CD?)


An in depth analysis on Laurie Kaye’s blog “Bruce Willis and his i-tunes library. Now for some in-depth analysis” can be found  here http://laurencekaye.typepad.com/laurence_kayes_blog/2012/09/bruce-willis-and-his-i-tunes-library-now-for-some-in-depth-analysis.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+LaurenceKayeOnDigitalCopyright+%28Laurence+Kaye+on+Digital+Media+Law%29

There has been an ongoing case between EMI and ReDigi in the same area, more here http://the1709blog.blogspot.co.uk/2012/04/is-it-legal-to-sell-digital-downloads.html and  here http://news.cnet.com/8301-31001_3-57372464-261/judge-denies-emis-bid-to-halt-resale-of-digital-music/ more from Eleonora Rosati  at http://ipkitten.blogspot.co.uk/2012/09/bruce-willis-to-sue-apple-over-who-owns.html and here http://www.news.com.au/technology/bruce-willis-considering-legal-action-against-apple-over-rights-to-digital-music-collection/story-e6frfrnr-1226463667680

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