Hacker News Reader

Comment by Closi | Hacker News Reader

> The confiscation of your rights to your digital media depends on the fiction that you are licensing the music, not buying it. The fact that there's a giant "buy now" button on the interface notwithstanding, tech and entertainment companies maintain that you are engaged in a licensing deal, like an advertiser buying synch rights for a hamburger commercial.

This post makes everything seem needlessly complicated - you are buying a licence, there is no contradiction here.

How else would digital media / sale of MP3's work without licences? Is the author suggesting that everyone should legally be able to freely transfer/distribute their MP3's to anyone with no legal limit?

I don't see any alternative to licences mentioned anywhere in the post - just lots of handwaving about some sort of wave function collapse (where wave function collapse just means a contract that has different terms for a digital purchase instead of a physical purchase).

View on HN

> where wave function collapse just means a contract that has different terms for a digital purchase instead of a physical purchase

That's not what the article states. The author is saying that the same transaction - IE: my 'buying' a track on iTunes, for example - is considered a license transfer, between me and the record company, and a sale, between the record company and the artist.

This superposition of license and sale for the same transaction is collapsed into a license - so: no transfer rights, no right to make copies, etc. - when the record company it talking to me.

On the other hand - when the record company is talking to the artist - the superposition collapses to a sale, so the artist gets 13% of the value instead of the 50% they would get if it was a license sale.

It's just a sale of a licence.

If I'm a Domino's franchisee, and I pay Domino's a different commission for an order placed online vs a customer walking into the store, the pizza isn't in a state of quantum superposition - that's just making a simple concept overly complex by incorrectly throwing quantum words at it. The concept is just that different things have different prices in the master agreement.

If I'm a movie theatre that happens to sell a DVD of the same movie, when a customer comes in they also aren't in a shrodingers-cat quantum dilemma superposition state, it's just the simple idea that different things have different prices and different compensation structures for artists.

Why are the labels paying the "sale" royalty to their artists if no such thing is occurring? Was the track sold or was it licensed?

They sold a license.

This is like saying "Was a movie ticket sold or was it admission?" - you can purchase admission, so it's a nonsense question.

The contracts will then define what a particular transaction means in a particular context, and what the royalty rate is. Without seeing the exact contracts and definitions of 'sale' and 'license', which are suspiciously absent in the article, then the whole premise of the article is IMO missing substance.

Fair enough on the contract details. Neither of us know the language used in the artist contracts. I'm willing to bet many of those were drawn up in the age before digital distribution, hence the arguments.

I'm not confused by the concept of purchasing ("buying") a license. I get that! But if the label is using one concept to determine the royalty rate, but switching to a difference concept to determine the customer's rights, then there's still a problem. Again, I don't know the details of the artists' contracts. But I do know this is probably relevant for some subset of artists whose contracts don't deal directly with digital distribution. In those cases, when terms like "license" and "sale" are used to denote different things, there's a problem if the labels use "sale" on one hand, and "license" on the other hand. If they sell me a license, the artist should be paid the "license" rate.

If we follow that train of reasoning, that it counts as a "sale" when a license is sold, then what are the license royalty rates for? All paid licenses are sold!

The quantum superposition thing is just a cheeky metaphor for a sketchy-sounding accounting practice, I wouldn’t read too much into the wave-function collapse analogy.

It's a metaphor which makes it sound more complex than it is.

All they are describing is that they have agreed to different royalty rates for different types of sale.

I have zero doubt that the contracts will have very clear definitions of what counts as a 'sale' and what counts as 'licensing', but this article just pretends that it is highly ambiguous in order to make a strange analogy to quantum mechanics.

You're trying to prove your point, but you haven't really understood what it is about. The transaction is treated differently from an accounting perspective, as a license and a sale at the same time (this is what the wave collapse joke is about), with the effect both of ripping off the artists and limiting buyer rights.

They get the rights management from licensing on the user side (no "giving away old albums to a friend" possible), while giving artists the lower cut as if it was a physical album sale with high distribution costs. It has nothing to do with digital vs physical sales, you could play the same trick with a CD sale.

> How else would digital media / sale of MP3's work without licences? Is the author suggesting that everyone should legally be able to freely transfer/distribute their MP3's to anyone with no legal limit?

What would be wrong with the same first sale doctrine that applies to physical instances of digital media (such as CDs) ?

CD: You buy it, you are free to resell it to someone else; you are not free to make copies.

Digital data only: You buy it, you can resell it someone else (0); you are not free give additional copies to anyone else (1)

(0) not likely to happen (1) you can of course make your own copies, eg. for backup or across devices

Would enforcing such a legal structure be possible? Yes and no. Everyone knows that once you could rip CDs, the legal structure for that format was already severely challenged by people's actual behavior, so there's nothing particularly new there.

> Digital data only: You buy it, you can resell it someone else (0); you are not free give additional copies to anyone else (1)

Sounds like you are buying a transferable licence?

(If this isn't a licence, what would you call it? As presumably once you have 'sold' it, it can still reside on your laptop but you aren't allowed to play it).

It's not a license. It's a purchase of an item that becomes your own possession, and a law that covers what you can do as far as resale (also applies to books).

It's not a license because it cannot be revoked by whoever sold it to you.

> It's not a license. It's a purchase of an item that becomes your own possession, and a law that covers what you can do as far as resale (also applies to books).

So once I sell it, if it's still on my hard-drive am I allowed to listen to it in your world?

And if I have it but am not allowed to listen to it, what is that lack of playing-permission called if not 'not owning a license'?

> It's not a license because it cannot be revoked by whoever sold it to you.

Licences can be irrevocable, so this isn't a necessary property of a licence.

> So once I sell it, if it's still on my hard-drive am I allowed to listen to it in your world?

I don't recall the precise case law that applies to CDs. There's certainly a version of things (probably the one desired by record companies) in which one or both of these is true (a) you can't rip it (b) you can't listen to the rips after you've sold it.

Remember, methods of enforcing such a legal regime are distinct from the regime itself.

> Licences can be irrevocable, so this isn't a necessary property of a licence.

With networked digital technology, it is not always a matter of the legal terms of the license. If the playback mechanism requires contacting a remote server, whether you have a license of not does not matter if said server is no longer in existence.

And sure, licenses can be irrevocable, but those connected with digital media, in general, have not been.

I just mean that a lot of the chats in this thread seem to be saying “if we didn’t have licences, the alternative would be x”

Where x describes a licence, just with different licensing terms.

> So once I sell it, if it's still on my hard-drive am I allowed to listen to it in your world?

The same is possible with physical media. Analog media can be duplicated with varying levels of loss, digital media can be duplicated with no loss, and then the original item resold. Why must digital files be treated significantly differently, and suddenly DRM is required to even allow legitimate resale?

If copyright owners had their way, they’d automatically get a blanket license to everyone’s content, while giving the individual person zero rights. The historical behavior of the industry (all the way back to Thomas Edison) indicates that this would be the case.

How about a simple purchase of a copy, with its use being limited only by current copyright law? A.k.a, no copying, redistributing, derivative work-making, etc. (Absent fair use cases)

How is this practically different to the current situation? (i.e. what can I do here that I can't do at the moment?)

Fair use I pressume.

I understood the point of the post to be about musicians not getting licensing royals.

It's a post that talks about the specifics of what a contract defines as a 'sale' and a 'licensing' vs what OP personally defines a 'sale' and a 'licencing' to mean, without actually sharing how the contract defines 'sale' and 'licencing' (which will be explicitly defined in a definitions section).

But IMO because there isn't that much substance there, this idea that a 'sale' might have different definitions is referred to as a 'quantum state' rather than sharing the actual definition of 'sale' used whatever contract they are referencing.

Reply on news.ycombinator.com