No, Apple Music Won't Delete Your Personal MP3s

Apple Music will steal your tracks and there’s nothing you can do about it. At least that’s the argument made in a blog post from Wednesday that picked up steam among digital music listeners.

James Pinkstone, the director of studio and operations at a branding company called Vellum, claims that 122 GB of his music was taken off of his computer’s hard drive by iTunes, the desktop software for Apple Music. He also says Apple employees couldn’t solve the problem, and nothing could to be done about it because users sign away any Apple liability in the contract agreement that no one reads.

“If you’re wondering why Apple hasn’t been sued yet,” Pinkstone writes, “it’s because the iTunes Terms of Use vaguely warn of this issue, then later indemnify Apple and preclude any litigation from users who’ve been boned.”

But that might not be the case.

Inverse reached out to Pinkstone via Vellum to independently verify that his music was deleted, but he did not respond by time of writing. Two entertainment lawyers, however, believe that, if Apple was taken to court and if the court case was taken seriously rather than overpowered by the lawyers of the most wealthy company in the country — the vague End User License Agreement (EULA) might not hold up.

But that’s a big “if.”

Legality of over-vague EULAs

Barry Chase, the senior partner at Chase lawyers, is a man who knows license agreements. His law firm writes them, oftentimes for music producers.

“It’s not that I admire this contract,” Chase tells Inverse. “If I’m a judge, I’m going to try to find a way to invalidate it. The judge might even say, ‘If you’re going to do something that outrageous, you need it to be in blinking red letters.’”

Just because someone agrees to a contract doesn’t mean that the contract is legally binding. Shrink-wrap agreements, the agreements inside of the packaging of a product that hit people with a “binding consent before they’ve even seen the thing,” have largely been deemed indefensible.

Another case is when an consenter’s conscious is shocked.

“If you’re a 92-year-old widow who can’t see very well and I’m a fast talking sales guy, it is possible that the contract between the two of us when testing in court is deemed unconscionable if the terms are really abusive,” Chase says. “But we don’t want to do this lightly, maybe one out of 1000 cases.”

Finally, a EULA might not hold up in court if it is overly vague. This is where Apple could get in trouble. Apple’s EULA states that the company isn’t responsible for “any loss or damage of any kind incurred as a result of the use of any content or Apple Music products.”

Even with that line, Apple would be hard pressed to justify the legality of serving up a product that takes away that much data that people legally bought. Which leads to the next point: theft.

The theft argument

If Pinkstone really had his music taken from his hard drive like he claims (iMore explains why it might be his fault, not Apple’s), there’s an argument out there that Apple stole the music. Especially if the files were Pinkstone’s private files that he made himself, like he claims.

Limitations of liability are meant to protect companies from liability if something wrong happens, but it would “not protect the intentional act of going into your hard drive and downloading previously purchased items,” Doug Mark, lawyer at Mark Music and Media Law, tells Inverse.

Shit happens sometimes when you use an app. Not everything can be prevented. But intentionally going into someone’s computer and removing downloads is theft. That isn’t protected no matter what the EULA says.

“If Taxi Driver is on Netflix, Netflix doesn’t come to your house and steal your Taxi Driver DVD,” Pinkstone writes. “But that’s where we’re headed. When it comes to music, Apple is already there.”

Clicking “I Agree” in a box wouldn’t allow Netflix to come and steal your physical DVD. And checking off on Apple Music’s agreement wouldn’t allow them to come in and remove downloads, which is why iMore’s assertion that something went wrong as a result of Pinkstone misunderstanding how Apple Music handles files sounds believable.

Apple won’t change because of a lawsuit or criminal prosecution, Mark argues, because the company is too big. Claims of Apple Music doing this go all the way back to the release last July. But “if there is an outcry — a class action suit or a public outcry — that their hard copies are missing, we will hear about it very soon.”