Legalities of US iTunes Store vouchers in South Africa

Melissa Attree posed a couple questions on Twitter a while ago about a South African service that serves up iTunes vouchers for the US iTunes Store. Yourtunes is a service that allows South Africans (or anyone really) to purchase vouchers from the US iTunes Store and buy content from that store.

The reason why this is an appealing service is that the US iTunes Store is the most complete of the various iTunes Stores and contains a wide variety of music, movies, applications and more, most of which are not available in the very limited South African iTunes Store. The South African iTunes Store basically contains applications for the iPhone and iPod Touch which isn’t much comfort for people who want to download music and other content for their devices. I wrote about the legalities of purchasing content from the US iTunes Store a little while ago and the bottom line is that purchasing content from the US iTunes Store from outside the territories officially serviced by that store is a violation of Apple’s terms of service, which are, in a sense, a contract between users and Apple.

TERMS OF SALE

U.S. SALES ONLY

Purchases or rentals (as applicable) from the iTunes Store are available to you only in the United States, its territories, and possessions, and are not available in any other location. You agree not to use or attempt to use the iTunes Store from outside of the available territory. Apple may use technologies to verify such compliance.

Those terms contain a license to users which is granted subject to acceptance of the terms of service. What this all means is that to legitimately license content from the US iTunes Store you may only do so if you agree to the terms of service which effectively prohibit South Africans from purchasing that content, certainly from South Africa. When it comes to using gift vouchers from the US iTunes Store Apple’s terms include this extract:

Gift Certificate, iTunes Cards, Content Codes and Allowances

TERMS AND CONDITIONS

1. These Terms and Conditions are supplementary to the iTunes Store Terms of Sale, and apply specifically to Gift Certificates, iTunes Cards, Content Codes and Allowances.

2. Gift Certificates, iTunes Cards, Content Codes and Allowances, and unused balances, are not redeemable for cash and cannot be returned for a cash refund except as required by law, exchanged, resold, or used to purchase Gift Certificates or iTunes Cards or provide Allowances.

3. Gift Certificates, iTunes Cards, Content Codes and Allowances purchased in the U.S. must be redeemed through the U.S. iTunes Store, open only to persons above the age of 13 in the U.S., its territories and possessions. Not all products may be available. Internet access (fees may apply) and compatible software and hardware are required, see below.

4. Access to, redemption of Gift Certificates, iTunes Cards, Content Codes and Allowances on, or purchases from, and use of products purchased on, the iTunes Store, is subject to acceptance of its Terms of Service and Terms of Sale presented at the time of redemption or purchase, and found at http://www.apple.com/legal/itunes/us/terms.html#SERVICE and http://www.apple.com/legal/itunes/us/terms.html#SALE, respectively.

I’ve highlighted portions of both extracts which specifically point out the geographical limitations of the license granted to iTunes Store users. The terms governing iTunes vouchers emphasise the limitations in the core terms of service and the prohibition on South Africans using the vouchers to purchase content from the US iTunes Store outside the US. I haven’t researched the legalities of purchasing the vouchers themselves, particularly physical vouchers from US iStores or other retail outlets, but what is clear is that redeeming those vouchers is a violation of the terms of service and the license granted to users to consume content purchased in the US iTunes Store.

What does this mean? Well, the license granted to users is the set of permissions that give users the lawful right to consume that content. This is primarily a copyright issue. The content available in the store is owned by 3rd party content creators, publishers and other rights holders. They own the content and, through a license, grant users the right to consume the content.

So, for example, a music company owns the rights to an album that is available for sale in the iTunes Store. This means it likely owns copyright in that album and the bundle of rights that give it the exclusive rights to do various things with the content. In the absence of a license from the music company, you may not do much with the music. The license contained in the iTunes terms of service grants you permission to buy the album and consume it. In this case the license comes from Apple which was, in turn, licensed by the music company to sell the album to you under the license in Apple’s terms of service. It is a little complicated but the bottom line here is that the license in the iTunes terms of service is a series of permissions and restrictions. One of those restrictions is the geographical limitation of the iTunes Store’s availability. What that means is that if you purchase content from the iTunes Store in violation you are doing so in breach of the license and that, in turn, is a breach of copyright and is illegal. It is also a breach of your contract with Apple in the form of the terms of service and Apple could effectively cut your access to the Store and potentially the content you purchased from the Store.

What does Yourtunes have to do with all of this? Well, Yourtunes is enabling South Africans to illegally purchase content from the US iTunes Store. Of course Yourtunes doesn’t sell iTunes content, it sells iTunes vouchers. People who buy those vouchers from Yourtunes and redeem them in the iTunes Store are doing so illegally. Leaving aside whether Yourtunes is an illegal service (I haven’t researched that so I can’t really comment on that), using the vouchers you buy from Yourtunes is.

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