The question before the court is this.
Does copyright mean interoperability is impossible without the prior written consent of the copyright holder, not to mention everyone else in their value chain? (Lockbox image from Aware.org.)
That's the question lawyers for Real Networks may have to address, as Apple prepares to challenge its Harmony software, which lets you play songs bought from Real on the iPod, as a violation of the Copyright Act.
Or let me put it in a way Larry Lessig would understand. Does every West Coast Law automatically enjoy the protection of East Coast Law.
As of this writing Lessig's blog had not addressed the question, so just remember if you click ahead I'm not a lawyer, just a journalist trying to sort right from wrong.
I don't accept the premise of the law in question.
I don't accept the premise that copyright is absolute, or that copyright can control what you do with an artist's work, today, tomorrow, practically forever.
I believe, as the founders did, that copyright is a limited right, granted for a limited time, meant to encourage the creators of work to create something more. It's like a patent, although patents run for just 17 years. You can patent something new based on something patented. You can build a better mousetrap -- you can't patent the idea of a mousetrap.
Yet that is just what Apple is proposing to do, and without even the benefit of patent. It's proposing to patent the idea of locked content, based solely on copyright, and thus keep anyone else from letting you use that locked content without its express written consent -- and without being paid.
There are already too many "rights" to creative work that, along with copyright, keep us from enjoying these works as we want. As a result I still keep a CD player with me as I exercise, and change albums every hour.
I don't trust the lockboxes. I don't trust Apple's lockbox, and I don't trust Real's. I don't trust the music industry, so there are many albums I won't buy, and I can no longer buy imported music, either, for fear of software that will cripple my system and throw lockboxes around my stuff.
So on a commercial level I don't have a dog in this fight. On a moral level, I feel there should be a pox on both their houses.
But in terms of the case before the court, you have to come down for Real. Because if content is locked, and the lock is locked, and the lock that locks the lock is locked, then we're down a rabbit hole Harry Houdini may be unable to get out of.
I'm no attorney but in this case, Apple is not locking away content so that no one anywhere else can access except using their "system."
You can go into thousands of CD stores and buy the same music (actually better as AAC is compressed CD audio), rip it in one of 7 choices and load it onto your ipod.
You can even buy it as a WMA from any other online store, rip it as a CD and then copy it onto your ipod as a AIFF or re-rip as an Mp3.
Couldn't you argue that as a consumer you have many choices of getting music onto their device but ONE of your choices is to buy tracks from Apple in the AAC format that is pretty seamless - that you give up certain rights by buying it from Apple but those rights you give up are openly acknowledged and agreed up but as a tradeoff, it's greatly convenient - perhaps sort of like the equvilient of buying a gift credit card from STORE X. But you can still use cash, Visa. MC, Amex, Discover, travel checks, et al - what Real is doing is saying, we hacked into their credit card reader and we're going to sell gift cards for STORE X also?
Permalink to Commentjbelkin, this is the second time I've read your analogy and I'm still confused.
What Real has written a document converter which converts files from their music store, stored in Helix/AAC format (AAC audio encrypted with their Helix DRM) into FairPlay/AAC format (AAC audio encrypted with Apple's DRM). They do this before they download the file to the iPod, since the only "protected" format that the iPod supports is FairPlay/AAC and they don't want to download "unprotected" music, possibly due to licensing restrictions with the music providers.
Real's software does nothing to songs that I purchased via iTunes. It's just a way to get songs that I purchased elsewhere onto my iPod. Heck, if Real allows it, I could burn the songs that I purchase from their music store onto a CD and then re-rip them into 192Kbit AAC and download them to my iPod. What Real has done is more of a convenience for it's customers--they can now download directly to the iPod, which is great for Real's customers.
My analogy would be a program which converts AppleWorks documents into Microsoft Word documents so you can view them in Microsoft Word. This is common practice in the software industry and there are companies that make their living doing just that.
Maybe it's just me, but your analogy falls apart because of money. Yes, if it's like Real printing up iTMS gift cards, that's a problem because Apple isn't making any money off selling the gift card. But that is clearly not the case. The only way Apple is losing money is that people might--and considering how good iTMS is, it's a BIG might--decide to buy music from Real rather than Apple. So Apple is trying to use a proprietary document format to protect it's market-share and most people agree that is a bad thing.
Permalink to CommentWell I just have to say for everyone rushing to Real's defense and scorning Apple it seems a bit ironic to me. Real has for years protected it's place in the streaming media market by using a proprietary format that "locked" out competitors from letting their player play certain content .rm/.ram files. Sure competitors could play those files as well if they chose to license the file format.
Microsoft for it's part has been proliferating it's WMA format. Why? So it can leverage that to collect HUGE licensing fee from labels looking to create audio CDs based on the technology and their own DRM technology.
Apple for it's part is NOT promoting a file format as Real did with it's streaming business or Microsoft is with it's WMA format. Apple is using the AAC format which is open. The "closed" references are refering to the DRM technolgy Fairplay which Apple employs to secure those files so they can't be distributed to an infinite number of people. Now some argue with DRM but most agree that something must be done to secure files in a limited fashion so artists can make a living from their work. The point is Apple's FairPlay DRM has certain legal requirements for distribution. Apple has entered into contracts with record labels and user agreements with users as a distributor as it were of the FairPlay technology and is thus accountable for it. Real is not!!!! Apple bears a legal burden and responsiblity for the distribution of FairPlay technology. Therefore Apple is entitled on compensation for increased costs in the way of licensing fees if others wish to adopt the technology. And that use is purely at Apple's discretion.
Now as for the idea of "locked" technology this is nothing new like people are trying to make out. VHS and Beta Max is a similar issue. Or you could look at LaserDisc or minidisc versus DVD or CD. Still not satisfied? Look at Sony's ATRAC format. I don't see anyone complaining about that? Why is that? ATRAC is a proprietary file format with proprietary DRM attached to it as well. The truth of the matter is those who are upset about the changing file/media/DRM formats I understand where you are coming from. I hate paying for music I like on vinyl, CD, 8Track multiple times. But you have to except is that it has been going on for a long time and it isn't gonna change in part because it wasn't challenged sooner and has now been accepted by society as a whole. Just as peer to peer file sharing networks unleashed the idea of downloading. The genie is out of the bottle and there is no going back. However I would submit that Apple's AAC/Fairplay songs aren't "locked" technolgy as some are trying to suggest. Others have rightly pointed out that they can be burned to CD and played on millions of devices. For those of you out there concerned about patent/copyright issues why don't you worry about bigger fish.... ie the patenting of the human genome by drug companies!!!!!!!!!
So it seems that if those are the rules we have been playing by (whether you agree with them or not) why shouldn't Apple be allowed to play by them just as Microsoft, Sony, Real, and many others are? It seems to me that Real is just upset because they are losing the battle. If they were in first place and Apple was too far behind to even be seen would they let Apple into their business. I think not. If Real were the dominate player and Helix were the most common form of DRM out there shouldn't Apple have to license it to play those files on the iPod? I'm sure Real would answer YES!!!
But we still haven't gotten to the REAL issue which is not about "locked" technology or file formats at all, that is just smoke and mirrors for the true issue. If Real thought what they have done is legal and right why would they have approached Apple to LICENSE the technology in the first place? Why would they have offered to pay licencing fees to a competitor if they didn't think they had to? Real has only proceeded with what it knows is a weak legal position and foolish business model because it is desperate for the media attention which it hopes will generate business for it's Rhapsody music store!!!!
The REAL issue is that Real wants to exploit the iPod for it's gain not against Apple and the iTunes music store but rather against it's other competitors like Napster, Walmart, Sony etcetera. Real thinks it can use that leverage to gain share over those immediate rivals and put itself in Real wants the iPod buzz and Apple marketing money working for them to help promote Rhapsody. Why should they have that? Apple spent the money on R&D and marketing! Apple took the risk. Why should Real be the beneficiary? Why didn't Real design their own player as Apple did? As Sony did? Is that Apple's fault because Real has chosen a poor business model?
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Tracked on August 2, 2004 10:46 AM