Since Apple announced its new iTunes Match service on Monday, many have been wondering what will be the legal status of the songs they “upgrade” using the service. Here are some answers.
Q: How does it work?
A: For $24.99 a year, Apple will scan your music collection, note which songs you have, and upgrade each to a high quality 256 Kbps MP3. It will also give you access to a copy in the cloud. The interesting part is that it doesn’t matter how you acquired the music. You’ll get the upgraded files whether you bought the songs online, ripped them from a CD you own, or got them from BitTorrent.
Q: Does this make my ‘pirated’ songs legal? Can the RIAA still sue me?
A: The iTunes Match service is not amnesty for illegal downloading, and you can still be liable for copyright infringement even if you pay Apple to upgrade your songs. Basically, you commit the infringement when you upload or download a song without the copyright holder’s permission. Later upgrading the file, even if through a record company-licensed service, won’t erase your liability. If the RIAA or other rights-holder has evidence that your IP address is involved in file-sharing, they may still be able to sue you.
Q: Can Apple tell if my songs were acquired illegally? Will they tell the RIAA?
A: Theoretically, Apple might be able to tell if a song originally belonged to you or not. While most online music sellers like iTunes and AmazonMP3 offer music as DRM-free MP3 files, they still embed certain metadata or watermarks that potentially identify the original transaction. If you have a song on your computer, but the metadata shows it was sold to someone in China, and the song is known to be traded on BitTorrent, it’s circumstantial evidence that you downloaded the song illegally.
That said, it’s technically not illegal to simply posses a copyright-infringing work or to listen to it privately. A plaintiff would still have to show that you copied or distributed the work. Also, Apple has said that it will not share with third parties any information about users’ music collections. Apple could be subpoenaed for the information, so if it’s smart, Apple won’t collect or store any metadata information.
Q: Why are the record companies doing this?
A: It seems baffling that the record companies would sign up to a program that allows one to download a song illegally and then “legitimize” it through Apple, but it’s not that crazy. Though it often doesn’t seem like it, the recording industry has made great strides adapting to the new economic reality of the Internet. They’ve made songs available for 89¢ and have licensed plenty of free and reasonably-priced legal streaming services. They’ve likely gone as close to free as they can to compete with illegal downloads.
Still, there are likely billions of songs out there that were downloaded illegally, and there’s no putting the genie back in the bottle. So why not get some cash for them, too? The record companies are essentially getting paid retroactively (a little, but more than nothing) for the millions of illegal downloads that are already out there, and they don’t have to give up any legal rights to go after infringers. It’s a perfectly logical deal to make.
Jerry Brito is a contributor to TIME. Find him on Twitter at @jerrybrito. You can also continue the discussion on TIME’s Facebook page and on Twitter at @TIME.
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