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After selling over 400 million songs through the iTunes Music Store, Apple reportedly has pulled a fast one. The Bait: Remember the original iTunes promise? Songs purchased on iTunes could be copied to an unlimited number of iPods that you own and could be played on up to five Macs or PCs. And you could burn playlists to music CDs up to seven times. And you could burn individual songs to music CDs an unlimited number of times. Well, that was then and this is now according to a little blurb on VersionTracker this week. In announcing the latest release of Roxio’s award-winning CD and DVD burning software, Toast Titanium 6.1, which was supposed to fix some compatibility issues with Tiger, a not-so-subtle gotcha has been added. The Switch: "Following discussions with Apple, this version will no longer allow customers to create audio CDs, audio DVDs, or export audio to their hard drive using purchased iTunes music store content."
If true, Apple’s welching on the terms of their music license with end-users by strong-arming software developers into crippling their CD burning software may just earn them one of the biggest class-action lawsuits of the century … to the tune of 400 million already-purchased songs. Does Apple have the right to change the terms of their music license for future sales from iTunes? I suppose so. Do they have the right to change the rules for songs people have already purchased? Any first-year law student could answer that as could most folks with about an ounce of common sense. But you can still burn a CD using iTunes, you might be saying. And I would respond, "Yeah. This week." How many times in the past year has Apple made changes to iTunes that further restrict your use of music you lawfully purchased? Making iTunes the exclusive software for burning music CDs of music purchased from the iTunes Music Store will work just about as well as letting the Arab nations unilaterally set the price of oil. What’s coming next: music CDs that will only play on Apple CD players. Give us a break! Maybe it’s time for folks to take a look at allofmp3.com after all. It’s only 95¢ a song cheaper than iTunes. But we were all trying to be good citizens, except Apple apparently. If Apple can continually change the ground rules after the fact, then it’s hard to fault those who resort to tools such as PyMusique to protect their music investment.
The fundamental difference in what Roxio apparently was doing to reverse engineer the Apple encryption scheme and what Real appears to be doing is quite simple. People have always had a contractual right to copy their encrypted songs to music CDs. So, just as printer manufacturers have no right to assert the Digital Millenium Copyright Act (DMCA) to bar competitors from making compatible print cartridges, Apple has no legitimate DMCA claim to bar other companies from providing tools to perform the lawful act of making music CDs from iTunes downloaded songs. If Apple was only worried about their encryption scheme with no ulterior motives, then it would have been a simple matter to license a decryption library to Roxio for the limited purpose of making music CDs from iTunes downloaded music. That obviously didn’t happen.
It’s too bad that Apple, which has been embraced by the public as the model technology company in this country, just can’t seem to resist the temptation to jump into the legal thicket and shoot itself in the proverbial foot. Worse yet, it always seems to happen when Apple is on a roll. Makes you wonder what would happen if Apple really were in the desktop computing driver’s seat, doesn’t it? Once word spreads that Apple is beginning a process of further crippling music downloads by changing the original terms of their deal with the public, then, read my lips, the iTunes lock on music downloads is going to be history. So, Steve. Say it ain’t so. You’ve inspired a new generation of kids to actually buy their music. Don’t make them all sorry they trusted you.
About the Author. Ward Mundy is a retired attorney who spent more than 30 years providing legal and technology assistance to the federal courts in the United States. Nothing in this article should be construed as legal advice, and obviously the views expressed herein are solely those of the author.
Apple’s Terms of Service (you agree to all of these when you purchase a song) … "You acknowledge that some aspects of the Service, Products, and administering of the Usage Rules entails the ongoing involvement of Apple. Accordingly, in the event that Apple changes any part of the Service or discontinues the Service, which Apple may do at its election, you acknowledge that you may no longer be able to use Products to the same extent as prior to such change or discontinuation, and that Apple shall have no liability to you in such case." Or this one from terms of service: "20. Changes. Apple reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as ?｢ﾀﾜ?ｰ?ﾇｬ｢?｢どｨ?ｰ?ﾉてｰ?ﾇｬｮ?｢て?ﾀﾜ?ﾉｬｨAdditional Terms?｢ﾀﾜ?ｰ?ﾇｬ｢?｢どｨ?ｰ?ﾉてｰ?ﾇｬｮ?) will be effective immediately and incorporated into this Agreement. Your continued use of the iTunes Music Store following will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference."
[WM: Yep. Lawyers dream up all sorts of stuff to insulate their clients from responsibility for almost everything. It doesn’t mean the terms could withstand judicial scrutiny. If a company sells you a recording and publicly lays out how you can use it, they are going to be hard-pressed to persuade many judges that they didn’t really mean it because of what was buried in the fine print their lawyers later dreamed up. And, when companies start relying on fine print to excuse their public pronoucements, they usually pay the price in other ways, e.g. lack of future customers. For additional background on the iTunes Music Store, here’s a great link.]
It is so…tough tittles. Too bad. For iTunes, Apple, Roxio, consumers…. It bodes ill for future changes. Something else will come along then, I hope. I tend to avoid spending money on products or services that come with a lot of "fine" print, asterisks and disclaimers.