On Justice

All the major music sellers give limitations to what can be done with songs purchased from their sites. Generally, they allow a person to copy, burn, transfer, and store songs for personal, noncommercial purposes. Napster, Amazon, and Walmart make no mention specifically regarding the creation of ringtones but provide as follows: Napster: “You may not authorize, encourage or allow any Tracks or Materials used or obtained by you to be reproduced, modified, displayed, publicly performed or displayed, broadcast, transferred, distributed or otherwise used by anyone else.” Amazon: “Except as set forth in Section 2.1 above, you agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-license or otherwise transfer or use the Digital Content.” Walmart: “You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Contents, the Site or any related software.” Thus, all three clearly prohibit modification of their songs, and as long as a court would view the creation of a ringtone as a modification, a person would not be legally justified in such an endeavor. ITunes has a taken a different approach. Its does not contain one of these limitations clauses but provides that a person may “copy, store and burn iTunes Plus Products as reasonably necessary for personal, noncommercial use.” (Section 9(xii)). Though the license has specific limitations on purchased ringtones, the legal status of a purchaser created ringtone is left unclear. ITunes has a function that allows users to create a ringtone from a full song if it was previously purchased from ITunes. The catch is that the user created ringtone must be purchased for an additional 99¢. Thus, the user created ringtones are separate works purchased individually and are limited to be used only “as a musical ‘ringer’ in connection with phone calls.” (Section 9(viii)). Though the language of the ITunes license appears to allow modification, it later provides:

All copyrights in and to the Service, including but not limited to, the iTunes Store (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources), and software, are owned by Apple and/or its licensors, who reserve all their rights in law and equity. THE USE OF THE SOFTWARE OR ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THESE TERMS OF SERVICE, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT. (Section 13(c)).

Even though ITunes does not explicitly prohibit modification, this clause indicates that the license is limited only to those actions explicitly granted above. Similar clauses appear in the licenses for Amazon, Walmart, and Napster. It appears that there is no way to create custom ringtones from song’s downloaded from these companies without being liable for either breach of contract or copyright infringement. In a subsequent post, I will address the more complicated question of whether in the absence of specific limitations, creation of a ringtone is nonetheless a copy or derivative work in violation of federal copyright law.

Last week, Napster joined those changing from Digital Rights Management (‘DRM’) encoded music to DRM free MP3 purchases. The move is not a surprise considering the long criticism of DRM. Some of the most significant criticism came from Steve Jobs, owner of Apple, who basically condemned DRM’s in 2007. Shortly thereafter, Apple began offering DRM free downloads of artists signed under the EMI music label. Job’s explained that Apple’s commitment to DRM free music is limited by the music distributors that sell their music through ITunes. So far, only EMI and some Indie labels have allowed their music to be sold in DRM free format to ITunes. These songs are denoted as “ITunes Plus” and usually have a ‘+’ sign next to them. Originally they were sold at $1.29/song (justified partly by the higher quality sound format of 256 kbps), but the price decreased to 99¢/song. ITunes also allows its users to upgrade their music to DRM free files for 30¢/song. To find ITunes Plus songs, click on the ITunes Plus link on the right side under “Quicklinks” or go here for a list of artists signed under the EMI label. While some people may continue hunting for songs on ITunes Plus, I might switch to Napster. Here is a relevant portion from the Terms and Conditions:

MP3Permanent Downloads: MP3 Permanent Downloads are sold in the MP3 format, at the bit rate indicated to you within your purchase path. Napster will not assign limits to the number of times MP3 Permanent Downloads purchased via Napster can be copyied, transferred or burned (though your own use will depend upon your own hardware and software and its limitations and you must abide by these terms and conditions and all applicable laws). Napster and/or its content licensors may include digital watermarks (embedded bits of information in addition to the sound file) in your MP3 Permanent Downloads that add sales information to each digital file such as (but not limited to) the fact that the file was purchased from Napster, the date and time of purchase, or information about the song (title, artist, etc.). Napster will not include any information personally connected to you in any such digital watermark or otherwise. You are only entitled to one copy of any purchased MP3 Permanent Download (see “All Sales Final” below”). (Terms and Conditions)

This agreement raises an interesting question: what is the scope of “copied, transferred or burned?” An additional clause sheds lights:

You may not authorize, encourage or allow any Tracks or Materials used or obtained by you to be reproduced, modified, displayed, publicly performed or displayed, broadcast, transferred, distributed or otherwise used by anyone else. (emphasis added, “Tracks and Materials”)

The words “anyone else” indicate an intent to prevent sale to others. Thus, the word “transfer” in the first clause probably grants permission only to transfer to other devices owned by the original purchaser. Amazon (89-99¢/song) and Walmart (94¢/song) also sell DRM free MP3 music. Even a cursory look shows that, like Napster, both have a wider selection of MP3′s to download than those offered via ITunes Plus. Walmart’s purchasing system, however, does not support Mac or Linux (unless you are clever). Like Napster, both Walmart and Amazon have provisions that limit usage to the purchaser alone and include the usual limitations guaranteed under federal copyright laws. This legal transition is still a welcome change from the hassel of DRM that limited the number of copies one may have at any given time. Though ITunes expanded user rights to allow up to 5 copies at a time, I refused to buy a DRM encoded song, and to this day, I have never purchased one. This kind of purchase and other copyright restrictions create agreements that violate fundamental principles of property rights and subvert the constitutional right of creativity upon which copyright laws are predicated . In a more philosophical article soon to come, I hope to explain why these contracts are unjust.