Not Good: Jobs Changes The iTunes Rules
I don’t know about you but when I invest in a certain type of media I don’t expect the rules to be randomly changed on me. While Apple’s recent change to the Digital Rights Management (DRM) agreement may seem benign the changes, by their very existence, are a dangerous precedent.
Imagine, after building up a 100 odd CD collection being told that, from now on, the CD’s that you buy now cannot be played in your car? Absurd? By treating iTunes songs as software Apple has reminded all of us that the rules can, and will change. While changing the rules from 10 burns to 7 burns isn’t a big deal this isn’t the point. The point is that as consumers we cannot rely on the iTunes music store being a stable entity. What if the record labels start to get, as they are prone to, even more irrationally paranoid and decide that we can only use our songs on one machine, burn them once, and listen to them on an iPod? Irrational? Yes. Improbable? Perhaps. But entirely plausible.
Just like the Compact Disc was based on a series of standards the digital music file needs a standard set of rules and fast. Maybe this is a time when government intervention is necessary to corral the myriad interests together. The format shouldnŐt matter (although it would be nice if there was a standard format) but the rules should. How many times can a file be burned and how many devices it can be played on should all be established keeping in the mind the interests of the consumer and the music industry.
Steve Jobs has done a wonderful job monetizing and legitimizing digital music. However, by suddenly announcing that the rules are changing, albeit (for now) in a minor way, Jobs has reminded us that we are not buying CD’s. Indeed, while Jobs is proud to boast that people don’t like to rent music (a la the subscription model) by changing the rules us iTunes’s consumers are made to feel more like renter’s than purchasers. I’ll continue to purchase music from the iTunes music store because I have faith that Apple will do the right thing. I’m just a little less comfortable now that the rules have been changed on me.
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Tony, I haven’t looked at the phrasing of my original post (in which I use the phrase, willy nilly), but I didn’t mean to characterize these current changes in this way. I mean only to say that the Terms of Service permit changes on a “willy nilly” basis. When I buy a product which is not a subscription service, then I expect that product to remain mine to use even if the originating company ceases to exist. For example, if I buy a book, I have every confidence it will be mine to use as I will even long after the original publisher goes into bankruptcy. I also have every confidence that the publisher or retailer will not seek to circumscribe my use of the book in a way that goes BEYOND existing copyright law.
I would have no problem with Apple’s Terms of Service saying simply that all international copyright laws apply and essentially to leave it at that. But Apple (and apparently the RIAA members) feel these constraints are insufficient—and they want to further restrict the customer’s use of a copyrighted product. My question is simple: Why? Why is the Copyright Act not good enough?
As for positive intent, this would require me to get inside the heads of Apple executives, but based on what I have seen, I’m inclined to agree with you that there is positive intent on Apple’s part here and I can appreciate it may well be tiptoeing through a mine field of licensing issues and old-school thinking in an industry that is being dragged kicking and screaming into its OWN future. So I hope this at least touches on your question, (it was simply an oversight on my part that I hadn’t answered it until now).
> My question is simple: Why?
> Why is the Copyright Act not good enough?
1) Because the Copyright Act has proven insufficient to restrict the illegal distribution of mp3 files created from CDs purchased under protection of the copyright act.
2) Because the record companies, who control/own the music would not allow Apple to sell the music without stronger protection.
IMO Apple is much more lenient towards copyright protection than the RIAA (look at how Apple sells OS X and OS X Family packs on a pure “honor” basis for proof) So to place the blame on Apple seems incorrect.
Tony, it’s not about placing “blame” on Apple, but a company is responsible for its own policies, is it not?
As for why the Copyright Act is not good enough, your second point is true enough—and we’ve already touched on that. But the first point is not convincing to me because it is not the role of a private company to enforce federal statutes—whether from the civil or criminal code. Any measures a company would presume to take which supersede or trump federal law are problematic in my eyes, and I’m concerned that so few people share my apprehension about this idea that an EULA is sacrosanct—all on the grounds of this dubious “agreement” by the customer.
Tony, we both know that as a practical matter, people do not read these license agreements. There are exceptions to almost everything, of course, but by and large people don’t wade through all the legalistic verbiage. Now before you leap to say, “Well, while that may be true, it’s nonetheless their responsibility all the same,” let me pose a hypothetical scenario to you. Suppose the ITMS terms of service included this clause—buried deep within paragraphs of prose: “By accepting these terms of service the user agrees not to use this music at any function, event, fund raiser, party, or any social occasion etc., designed for or attended by blacks and Jews.” Now does your “letter of the law” propensity lead you to say, “Well, as onerous as such a clause would be, so long as the user clicks on the ACCEPT button, that’s just tough luck because he agreed”?
I should hope you realize that not everything in a contract is legally enforceable. Granted I pick an extreme example just to make the point, but all you have to do is walk on water ONCE to show it can in fact be done. Once we establish that there ARE limits to contract law, then we can debate precisely where those limits are drawn. But first things first—since for the time being you and others seem to think that the Terms of Service are the end of the story and that anything goes.
Again, I contend that Apple actively advertises that its ITMS service permits customers to OWN their “music,” and while this obviously doesn’t mean we own the music itself, we DO own the files which contain the music. The files—AS FILES—are not copyrighted; only the music within them is copyrighted. And I maintain—any EULA notwithstanding—that as the owner I can do with the files what I choose (so long as I don’t violate the Copyright Act in the process).
If you still disagree, then let’s forget about music for a moment and think instead about text. Suppose you purchase the text of a copyrighted speech. You can put this text into a Microsoft Word file or an Adobe PDF file or even an unformatted ASCII text file. Throughout the process the raw text remains protected by copyright, but can you imagine your reaction if the copyright holder notified you that they reserve the right to control not only the text itself but also any files which contain the text. Thus you are herewith enjoined from “tampering” with any header and footer settings in your Microsoft Word file and you cannot convert the file to PDF format—even if you intend to do nothing more with it than keep it on your OWN hard disk.
I contend that DRM code is analagous to Microsoft Word headers and footers. They are not part of the copyrighted content. They are instead part of the “overhead” associated with a file. And the file is owned by ME—I paid for it. And I will let neither Apple nor the RIAA play the role of copyright police with the files on my OWN computer.
So I don’t mean to be heavyhanded in the way I express myself, but I do feel strongly about this issue. We seem to be evolving into a guilty until proven innocent society, and I regard this as no small development. (Meantime, though, I do want to emphasize that I understand your point two above and I’m not unsympathetic to the dilemma Apple is in—since in many ways it is caught between the myopic recording industry on the one hand and its own customers on the other.)
Jeff, I contend that I do own my music, regardless of the status of iTunes development or changes in licensing. You disagree.
Apple is not enforcing federal statute. Apple is abiding by the contracts that it has signed with the record companies. To distribute music with a licensing scheme and distribution controls.
I do not doubt that there are limits to contract law, but to just say that you don’t like them, or did not read them and that therefore the contract is void will not hold up in court either
Your attempt at analogy with “text” fails in that you are not purchasing the music in a manner devoid of security. You know that the files sold on the ITMS have a security wrapper. A better analogy is if you bought a speech in a “secure” PDF…. I’ll let you work the analogy further
The reason I feel so confused, by all this debate, is because I don’t feel restricted by iTunes 4.5 at all. Lets go back in time a bit.
I the days of the LP, your only copy had to be very well protected. Because, one sctratch ment no music or spending more money. There was no such issue as back up coppies for the average “Joe on the street”. This is when Copyrighting, by itself worked. If you wore out your 8 track tape, there was no backup to go to. You went back to the store to buy another. Copyrighting alone worked here too. Then the introduction of the cassette tape started to change everything. You could copy your LP’s, 8 tracks, and cassettes and create back ups, even mixing albums and multiple albums. But there was a sound quality sacrifice that the audiophiles couldn’t stand. This is when Copyright started to show weakness. A simple written rule won’t stop a person set on doing what he or she is set on doing.
So now, to feel restricted by only being allowed to create 7 coppies of purchased music, seems a bit like we are reaching for a complaint.
We are in total ownership of our iTunes music. We can back up on an infinate number of hard drives, both internal and external. We can play our iPods on our hip, in the car, on our home systems, our computers (both connected and unconnected to the internet). Yet all I hear is complaints that we can’t copy our music to the level of a distribution facility.
I know all this debate is hypathetical, but we are evaluating a new product like the 1000 year old book. It seem a bit odd…....thats all.
Tony, your last post is a very challenging one indeed. I have had to give this some thought, (at the disruption of my work day). Let me just say this: if you feel you do own the music, regardless of the licensing and terms thereto, then you must have a very peculiar notion of ownership and what that means and entails. So let me simply ask you outright—how do you define ownership? If another party can continue to dictate the terms of your use of a thing in perpetuity, then in what way then do you actually own a thing?
I know I’ve been “supposing” you to death in this thread, but please indulge me one additional scenario. Suppose Apple changed its terms to prohibit the deletion of any file its customers purchase from ITMS. Ricidulous? Absolutely—I’ll grant you that. But you are taking the position that in regard to files you purchase from ITMS you are bound by whatever Apple decides to do in the future—period, (and all on the strength of your having clicked on the “Agree” button when you first signed up with ITMS). So in this scenario, then, according to your way of thinking you would not be able to delete the files you “own” from the hard disk which you “own” installed in the computer you “own.”
What’s wrong with this picture?
Now you might console yourself with the knowledge that my example is preposterous. But the underlying principle stands. I maintain that your ownership MEANS something beyond just a payment method. It means control of that which you purchased—within the limits of the law.
As for whether any behavior contrary to a license would hold up in court, I never have suggested that my own inattentiveness to the license was sufficient justification but rather only that the way the “agreement” is secured is suspect. Suppose, for instance, that I stipulate in this post that absent a reply from you, I will take your silence as agreement to my position. Yes, I can hear you now rushing to tell me that this is different and my analogy is flawed. Well, of course it is (different and flawed). But I’m first simply demonstrating that the question of whether one party to a contract has truly signed onto the contract is something which can be called into dispute.
To JeffyC, I’ve not been complaining about the NATURE of Apple’s current change in its terms because I agree with you that it’s pretty reasonable on balance. My concern is only that Apple reserves the right to make any number of changes in terms in the future—terms to which all iTMS customers are bound (perhaps retroactively so). And I agree with Hadley that in order for ITMS to succeed it must have some degree of stability and reliability in its relationships with its customers.
The tradeoffs listed by Jeff M. in my eyes are but a blip on the screen when you relate them to digital convenience.
We are spoiled by Internet age: the iTMS basically has replaced entire systems: technological, behavioral, ideological, retail, distribution, in just a single year. The incredible enhancements that digital music offers far far outweigh the current mess of DRM and outdated copyright laws and drawbacks relative to physical media.
Realize that iTMS is limited by medium - like cassettes were in their day. Ubiquitous high-speed access in the future will open the doors to CD quality and higher bitrates, liner notes and cover art will evolve into short films, animated graphics, music videos, all things more apropos for the medium. We will all forget about the simplistic CD album art in time.
Utilizing our digital music will quickly become more powerful, more convenient - already we see pharmacy stores with self-service digital photo printing: tomorrow we will see self-service digital music download, burn to CD/DVD, and liner note printing.
And even beyond trying to emulate current offerings - digital music could offer unbelievable things: buying a live concert recording, listen in as they perform on stage, and simultaneously recording to your hard drive for replay like a bootleg album. Electronica tracks that have infinite variations that you can tailor yourself - interactive music that DJs can create, similiar to deeply interactive games. Entire music environments you can interact with. The digital medium will allow for new types of musical art to be created. We’ve seen this with the “Gray Album” and mashes.
Drawing the line is a limitation, stifling innovation by not adjusting.
But if some people cannot see past not having printed liner notes “just like we used to have” then none of my comments above are much use.
To Jeff Mincey:
I understand you are arguing the possibilities, in which you discuss the ultimate possibility, if the pattern continued, not in favor of the customers like you and I. So lets continue down this made up road.
Would it be in the interest of Apple or even the record labels to go in this direction? No! For turning away from your source of revenue, the customers of iTunes, is probably the fastest way of losing market share, and Apple’s advantage in the marketplace. Would you not agree?
Do you honestly think a company would go in that negative direction on purpose or even on accident?
If Jobs were to read these comments about, what I feel was a very good move, I think he would honestly think to never do anything good for us (the customer) ever again. He improves a wonderful thing (iTunes), and for what: “Your policing me…............let copyright be the copyright so I can do all the illegal things I want….................I want the right to break the law”
Do you think if Apple didn’t cooperate with the record labels, by helping them protect their right to do business and protect copyright to protect profitability, that we would even have iTunes at all?
The last thing Apple needs is to be a source for music piracy….......the bad public relations of being catagorized with a Kazaa, or old Napster would threaten their position of dominance in the marketplace, more amunition for the competition.
I have a personal investment in this music system, the iPod and iTunes, and I don’t want it to go down burning, because Apple didn’t maintain the balance.
You, Jeff, have this same investment too. I would think you would want it to suceed, just like I.
Nathan,
Bravo!!!!!!!!!!!!!!!!!!!
Starbuck is already experimenting with 4 coffee shops where you can download music and burn th CD? I believe the experiment is in California right now.
> how do you define ownership?
Tough one, I’ll try to keep it brief (which probably means it’s wrong
Possession, possession of legal title, or being held responsible for.
> If another party can continue to dictate
> the terms of your use of a thing in perpetuity,
> then in what way then do you actually own a
> thing?
Does the government tell you where and how you can drive your car? Mandate insurance?
Change the rules of ownership or fees to be paid?
Do you belong to a homeowners or condo association who dictate the way a property can be maintained?
The list goes on and on.
I’ll repeat again in case you missed it earlier. Music I purchased previously from the ITMS will still work with iTunes 4.2 under the old Terms of Service.
I am bound only by the terms that I agree to. But I do not claim that if a term is present, and I find it distasteful that it is not to be followed. I would not click on agree aand not use the service or SW.
Law can be superceeded by contract. Is it “legal” to say you can not paint your house bright blue? Nope. But a contract with a homeowners association can prohibit it and impose penalties if you do.
I do believe that the “click to agree” conracts have held up in court, most recently in the various adware clients users do not realize they installed on their Windows machines.
Aside:
As for the loss of liner notes (etc.), that reminds me of the migration from LP to CD where some mourned the loss of “true” album cover art dure to reduced size.
As I head off to the airport…
It’ 1975 you feel cool, got a couple of bucks in your pocket. You buy an 8-track player and a bunch of 8-tracks.
1978 (or whenever it was) comes along. You can’t buy another 8-track player or anymore 8-tracks. Do you cease owning the 8-tracks and the music? Or did you never own them? Did the ability to play them in the previously purchased 8-track player cease on the day manufacturing stopped?
What obligation exists between you and the 8-track player manufacturer?
Nathan, Excellent points. Wow, could your comment about people being “digitally spoiled” set me off on a rant
I’m pressed for time and cannot address all the foregoing points right now, but I just want to say to Nathan that I appreciate his vision for the future potential of online digital music and that in contrast I was describing only a snapshot of the present (without taking into account what the future may hold). But I don’t agree that the loss of audio quality (to name but one concession we make for online convenience) is but a “blip.”
Apple’s ITMS has an inventory of 700,000 songs, compressed at 128K bit rates (with lost data from the original master tape or CD format). ITMS also woefully falls short in respect to addressing the needs of patrons of classical music and jazz. Essentially it’s a “song” service, and can’t cope with such things as the “movements” of a symphony, opus numbers, conductors, etc. It doesn’t distinguish between the year an album was published versus the year (or years) the music was recorded—and while this may not matter to the average person who downloads Britney Spears or the Backstreet Boys, it DOES matter to someone who wants to develop a digital library of Miles Davis.
I didn’t even mention (in my list of user sacrifices above), that the user-contributed CDDB database is essentially a joke for the SERIOUS listener and appreciator of music. Especially for classical music and jazz, the fools who submit their CD’s to CDDB often don’t know the difference between “composer” and “artist.” You wouldn’t believe the number of times I’ve been told that the artist on a particular CD I’m about to encode is “J. S. Bach” or “Beethoven.” Now this is off the subject of ITMS for the moment, granted, but it is still part and parcel of developing a digital library of music. It’s a huge time-sucking task to properly catalog the data from my CD’s into ID3 tags of AAC or MP3 files. And, again, all this information is already supplied to the purchaser of a conventional album.
I agree that one day everyone will have broadband connections and the dial-up days will fade from memory. But the industry itself recognizes that this change is very slow in coming. In fact, a recent survey was conducted in which most dial-up users reported that their connection speed essentially met their needs and the value added by broadband did not correspond to the increase in cost.
So maybe indeed one day in the future the picture will be rosy. But I’m not convinced that day is at hand. Meantime, and for the next few years at least, the customer DOES make sacrifices for the sake of the convenience and flexibility of ITMS. You can minimize these sacrifices if you like, but I for one regard them as significant.
Tony, you rightly draw a distinction between ownership and the limits of use. I was wondering, in fact, if you would ever bring up the automobile example specifically. (I’ve been waiting.)
I’m not a libertarian myself, but I do side with the libertarians in this regard—which is to say that the government can rightly restrict my use of something—even of something which I own outright—once my use (or misuse) can endanger others. Each of your examples pertains to the public implications of ownership. If I live in a remote area and have my car on my own property, I’m not governed by the same restrictions. So in fact any rules or laws which come to bear here apply not so much to my car itself as to government-owned streets and highways. It’s the use of the STREETS which actually carries the restrictions—not my car—and even if I were but to WALK on the streets as a pedestrian I will find myself to be constrained by ordinances and statutes thereto. The same distinction applies to a condominium I might own. The association rules apply generally to the grounds and the PUBLIC areas and not to the interior of my condo itself.
By the same token, I’m willing to live by this same distinction in regard to files I download from ITMS. What I do on my own computer is entirely up to me. But as soon as I enter the public sphere, I come under the copyright laws. And I have no objection to this at all. What I object to is the intrusion into my own private domain. And this is where contract law cannot supersede constitutional rights. Even if I supposedly agree to such terms, the Constitution trumps Apple from invading my computer and dictating which files I may or may not delete, rename, truncate, etc.
To JeffyC, you make some good points and I like the spirit of your last post very much; alas, I’m off to work now, but may get to your post later, (not that you are holding your breath).
Thanks to everyone for the intellectual challenge and the enjoyable discussion, and thanks to Hadley for hosting it.
Reports from reputable sources today—such as Reuters and others—are saying the major labels have succeeded in forcing Apple to raise its prices on ITMS by as much as 70%. Other sources—such as the New York Post—report that prices will increase from $0.99 to $1.25, and album prices will be going up as well.
http://www.theregister.co.uk/2004/05/07/apple_itunes_price_rises/
Already the prices are too high when you consider my list of concessions the customers already must make to buy digital music. Now, if indeed these new price increases are to go into effect, to buy an album online will be no less expensive than to buy one in a retail store—except that when buying online we will have no CD, no liner notes, no case, no photos, lower audio quality, and often we won’t even have the full album available in the first place.
Jobs is on record as saying rumors of price hikes are false, but we soon shall see. Let’s hope he is right. Otherwise, the RIAA members, in their infinite myopia, will (with this “penny wise” policy) only give a great boost to the free download services and peer-to-peer networks which ITMS offers an alternative to.