Is it illegal to purchase and download music from an iTunes (digital music) store outside of your country?

Asked about 4 years ago - New York, NY

Apple has separate iTunes stores for many countries. When you purchase a song from the Japan iTunes store, one must agree to its Terms of Service, which specifically states that all sales are for Japan only. Some argue that this is merely a policy, stating that buying/downloading iTunes music from Japan while being outside of it breaks no laws with no threat of legal action since the artist/songwriter of the song, the artist's record company, and the Japan iTunes store all get paid. Isn't this a breach of a legally binding contract? Shouldn't this be considered copyright infringement and/or smuggling? I need help explaining why this is illegal and I realize that there are many things going on with these questions, including international law. I thank you in advance for your replies.

Attorney answers (2)

  1. Emily Bass

    Contributor Level 13

    1

    Lawyer agrees

    Answered . For me, the question is not so much whether the purchase and downloading of music contrary to the "terms of use" or "terms of service" of a vendor is improper. It is, in my opinion. Rather, the question is what country's laws apply and what the remedy should be. The first is called a "conflict of laws" question. The second is a substantive question that can only be determined once you have determined which law applies.

    The first place you should look for an answer to the conflict of laws questions is the contract you enter into with Apple. In other words, the "terms of service" you are talking about may just specify what country's law applies.

    If United States law applies to the violation, there is a further wrinkle: is the remedy for violation you are speaking of a contractual remedy or a remedy that sounds in tort. In laymen's terms, that means, will you be liable for having breached your agreement or for having infringed someone's copyright. If the proper remedy is a contractual one, the damages are likely to be fairly modest or limited. If the violation is viewed as a copyright infringement, the damages can be quite substantial. Indeed, if the music copyrights have been registered with the US Copyright Office, the copyright holder would be entitled to statutory damages, ranging from $750 to $30,000 per infringement- higher, if the infringement was "willful."

    The courts are divided on how such a violation should be characterized- i.e., simply as a breach of contract or as an infringement of copyright. It generally depends upon whether the aspect of the license that has been violated is viewed as a central "condition" of the contract.

    My guess would be that, in most cases, the vendor's terms of use will afford it the right to terminate the license if the licensee is determined to have violated its terms. If it doesn't terminate the license, in my opinion, a licensee would have a legitimate argument to say that the violation is at most a breach of contract. If it does terminate the contract, on the other hand, any acts of circumvention and/or downloading after the termination would likely be viewed as infringement. Indeed, even the acts that provoked the termination might be found to constitute infringement.

    Obviously, without knowing precisely what the "terms of service" say, what the acts were that violated those terms, and where they were committed, it is impossible to be more precise. I hope this answer has given you some insight into how an attorney would analyze the question.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

  2. Maurice N Ross

    Pro

    Contributor Level 20

    Answered . There remains quite a bit of controversy over the enforceablity of "Terms of Service", but many courts will enforce them, and it is not a good idea for a consumer to ignore them. Further, your assumption that the songwriter, artist, and record company "all get paid" may not be correct. Even if they get paid under Japanese legal arrangements, they may get less than they would have received had the song been purchased/downloaded from a U.S. site. I have found over the years that Japanese record labels often take a bigger "cut" than U.S. labels and, therefore, it is quite likely that a person causes economic damage to songwriters and artists by downloading the music from Japan. Indeed, downloading songs from a Japanese site might constitute copyright infringement if such downloading violates terms of sue. In addition, downloading from a Japanese site may deprive state goverments in the United States of sales taxes to which they would otherwise be entitled. Further, it is conceivable that this conduct could interfere with tax laws, regulations and foreign policies of the United States government, including, for example,laws governing when income should be recognized as having been generated from transactions that occurred in the United States. In short, there are many reasons why failure to comply with these Terms of Service should be considered a serious matter.

    I must say, however, that to date I have not heard of many instances in which persons who violated terms of use by downloading a small number of songs from a foreign web site have been prosecuted. But I suspect the day will come when such prosecutions are common.

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