Expiring Music Licenses: The Removal of Content Post-Purchase Via Digital Distribution - Fordham Intellectual Property, Media & Entertainment Law Journal
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Expiring Music Licenses: The Removal of Content Post-Purchase Via Digital Distribution

Expiring Music Licenses: The Removal of Content Post-Purchase Via Digital Distribution

Music enhances many everyday activities and makes them more enjoyable. Whether it involves smooth jazz while reading, lively modern tunes while cooking, or classic rock while cruising on the highway, there is a certain undeniable and abstract kick to doing things with music. This concept is something that video game developers have subsequently sought to capitalize on when designing new products. However, the legal protections around music have resulted in a bizarre situation for some video game consumers.

Believing the inclusion of hit songs will enhance consumers’ immersion and overall level of enjoyment, video game developers generally seek to license assorted tracks from the various rights holders.1 These tracks can be licensed for a one time “buy-out” fee which covers all copies of a game sold within the agreed upon term, usually five to ten years.2 So, what happens when that term expires? In the case of physical media like game disks for consoles, there isn’t much a game publisher can do, as the licensed tracks are hard-coded onto those disks. Releasing and adding new content after the game’s purchase is easy enough; the new content is simply stored on local memory rather than the disk. However, content like licensed songs that arrived on the base disk generally cannot be removed, as the consumer can simply play offline away from any content-removing patches.

Contrast this, however, with consumers who purchase games for their PC through digital distribution systems on the internet like Steam. Games purchased in this manner are downloaded and stored in such a way that their coding can be substantially altered via updates, either supplementing content by adding code or cutting content by altering the existing code. It is this latter situation that is currently angering consumers within the context of expiring music licenses.

The popular game Grand Theft Auto IV, which was released back in 2008, turns ten years old later this month.3 Consequently, several of the music licenses from the base game are set to expire.4 This is a significant development for a game like Grand Theft Auto IV, where licensed songs play on the in-game radio to further add to the game’s expansiveness, significantly adding to the appeal of the game. The game’s publisher, Rockstar, is currently set to issue an update that modifies the game’s code, thereby removing a number of songs for all consumers that purchased the game via digital distribution.5

For Rockstar, this same issue last arose in 20126 and 2014,7 when similar updates to earlier installments of the GTA series prompted consumer backlash for lack of warning and removal of content they had already paid for. The removal of content based on the expiration of a music license is fairly understandable on its face – the license allowed use for a certain amount of time, and that time has since expired – but it is the fragmented effect on different consumers that should give one pause for concern.

As it stands, consumers that purchased the game through Steam and other digital distributors are disproportionately affected by this removal of content. Certain console owners supposedly will be prompted to download a digital copy of the game sans the songs under the expired licenses,8 but realistically, there is nothing stopping the console consumer from disconnecting from the internet and playing the game, music and all, indefinitely. This raises the question of whether the removal of content post-purchase is proper, given that some consumers would be entirely unaffected. Both console consumer and digital distribution consumers paid the same $60 price at launch,9 so why are only some consumers having content they paid for taken away? This issue of equity is something that must be addressed soon, as more and more media consumption moves to digital distribution.

As of now, this removal of content post-purchase appears to be a problem unique to video games. With other media like TV shows and movies, sale of physical media like DVDs is generally prohibited when the work in question still contains music under expired licenses.10 These works can still be streamed through services like Netflix, but only if the subject music is cut out or replaced.11 However, as movies and TV shows become more and more available for digital purchase,12 one can easily imagine something similar happening with digital copies of these media through Amazon, iTunes, or Paramount. If this issue isn’t addressed, there may very well be a day when people will be shocked to realize they can no longer listen to Aerosmith’s hit “I Don’t Want to Miss a Thing” at the end of their digital copy of 1998’s Armageddon, and surely that is a future that no one desires.

  1. Todd Brabec, Licensing Songs for Video Games, ASCAP (2007), https://www.ascap.com/Home/Music-Career/articles-advice/ascapcorner/corner16.aspx [https://perma.cc/2PHT-2S9B].

  2. Id.

  3. Steve Dent, ‘GTA IV’ will lose some of its in-game music over licensing issues, Engadget (Apr. 13, 2018), https://www.engadget.com/2018/04/13/gta-iv-vladivostok-fm-music-cut/ [https://perma.cc/3N67-KPAL].

  4. Id.

  5. Rich Stanton, Some of GTA IV’s Music Licenses Expire Later This Month, and Songs Will Be Removed, Kotaku (Apr. 9, 2018), http://www.kotaku.co.uk/2018/04/09/some-of-gta-ivs-music-licenses-expire-later-this-month-and-songs-will-be-removed [https://perma.cc/X8AH-BLEL].

  6. Owen Good, Grand Theft Auto: Vice City Removed from Steam Over Music Licensing, Kotaku (Nov. 17, 2012) https://kotaku.com/5961458/grand-theft-auto-vice-city-removed-from-steam-over-music-licensing [https://perma.cc/5JF5-5A7C].

  7. See Tim Cushing, Hooray For Licenses! Update Strips 17 Songs From Steam Users’ Purchased Copies Of Grand Theft Auto: San Andreas, TechDirt (Nov. 11, 2014), https://www.techdirt.com/articles/20141110/09535529096/hooray-licenses-update-strips-17-songs-steam-users-purchased-copies-grand-theft-auto-san-andreas.shtml [https://perma.cc/P728-EH76].

  8. Kyle Evans, Some of Grand Theft Auto IV’s music licenses expire this month, Rockstar Intel, (Apr. 10, 2018), https://rockstarintel.com/2018/04/10/some-of-grand-theft-auto-ivs-music-licenses-expire-this-month/ [https://perma.cc/K92P-PNEV].

  9. Seth Schiesel, Grand Theft Auto Takes on New York, New York Times (Apr. 28, 2008), https://www.nytimes.com/2008/04/28/arts/28auto.html [https://perma.cc/JV3T-NLA9].

  10. Todd VanDerWerff, The weird legal reason many of your favorite shows aren’t on DVD, Vox (Mar. 26, 2015), https://www.vox.com/2014/11/3/7145231/shows-not-on-dvd-music-rights-wonder-years-wkrp [https://perma.cc/K363-YMJE].

  11. Id.

  12. Danny Sullivan, Keep your Blu-rays and DVDS, Hollywood — I’ve gone digital, Cnet (Jan. 21, 2013), https://www.cnet.com/news/keep-your-blu-rays-and-dvds-hollywood-ive-gone-digital/ [https://perma.cc/V9WU-8BFC].

Chris Hamersky

Chris Hamersky is second year law student at Fordham University School of Law, and a staff member of the Intellectual Property, Media, & Entertainment Law Journal. He spends most of his free time commuting to Trenton for work and excitedly trying to convince people how amazing the Hafele-Keating experiment was.