Another Apple-Palm Battle in the making?
May 26th, 2010, 1:39pm by KelvinThere are a couple of new, free applications in the App Catalog that allow you to mine the iTunes-ome for song previews and set any song as your Pre’s ringtone.
Can Apple be OK with this? Is there anything similar for iPhones? Don’t they try to sell ringtones through iTunes to iPhone users? Apple protectionism aside, is this even legal, or is it a copyright violation?
May 26th, 2010 at 2:38 pm
That’s awesome… I’m a little surprised they got through Palm’s “rigorous” approval process.
As for the legal bits, using the Grokster standard the writers could be found guilty of contributory infringement, but only if it was found that using a short clip of a song as your ringtone constituted a copyright violation in the first place. Palm may or may not qualify for “safe harbor” since the app was approved by Palm. Of course, one could easily claim that there are substantial non-infringing uses, since folks are pretty likely to set a ringtone that they already own.
Then again, the song snippets are being made freely available, and there’s really no difference between streaming & downloading from a network point of view. These clips are clearly made available by the record companies & Apple. From that point of view, there’s no copyright violation although arguably a breach of contract… but I never agreed to a contract, so can’t see that either.
More I think about it, it’s really got nothing to do w/ copyright law, and if Apple doesn’t like it, their only recourse should be to block it on their end. Of course, it’s a lot easier for Apple to send a cease & desist to the developer & threaten to sue (even if they have no case), so if they even notice, I expect that’s what we’ll see.
Either from Apple blocking this app, or from the record companies asking Palm to boot it from the store, I can’t see these lasting very long. Of course, with sideloading enabled, we’re not wholly dependent on Palm’s whims & wishes.
May 26th, 2010 at 4:35 pm
“only if it was found that using a short clip of a song as your ringtone constituted a copyright violation in the first place.”
That’s the crux, i guess. The legality of ringtones has a storied history, and I’m not sure what the current interpretation is. Common sense would seem to indicate that if we trim our own MP3’s for use as our own ringtones, that should be fair use. On the other hand, I should not be able to upload that file to my server and charge people money for it without copyright infringement. Essentially, Apple has created a server where anyone can go and download a snippet of any song, if they know the secret. So the crux of the matter, more than whether the clip can be used as a ringtone, is whether it legal to obtain those snippets for any reason other than the reason that the record has explicitly blessed– song previewing. I imagine that Apple would argue that the file paths are intentionally obscured and the clips are therefore not made freely available for anything other than their intended purpose. If so, it follows that these apps, which unlock the “secret” path, violate the DMCA, to the extent that all unintended purposes are copyright violations.
May 26th, 2010 at 6:47 pm
In some ways, it’s not any different that sites that scrape Flickr for wallpapers that you can download to your phone or desktop. When possible, Flickr will make technical changes to block the offending website and that’s that. Sorta what like Hulu does to block Boxee. I don’t think providing a link to any unprotected media could be construed as a DMCA violation, although it would probably take several years in court to determine that.
May 27th, 2010 at 12:33 pm
@Kelvin: It could certainly be argued that trimming MP3s **that you own** is fair use (though the record companies may have ridiculously argued otherwise), but it’s a little more debatable whether using music you have never paid for is fair use or not. Personally, I would say that once you bought it, it’s yours to do whatever you want with, particularly if you don’t somehow make money off of it.
How do you think this relates to Bittorrent/LimeWire cases, where the defense is usually “we just provide links,” and has been used to various degrees of success (lately, very little success) in distributing copyrighted materials. If those recent legal opinions hold up, I would say the developers would be similarly liable for providing links to copyrighted material. I don’t see how Apple will be liable, as Jake seems to be saying above.
Not saying I agree with that, but the legal side of it seems to be against them right now.
May 27th, 2010 at 2:56 pm
So, at issue primarily is whether appropriating song previews as ringtones constitutes copyright infringement. Assuming it does, the second question is liability. Even if you argued that Apple is failing to lock the door, that doesn’t mean burglers aren’t culpable.
May 27th, 2010 at 4:09 pm
How is it any different than Boxee providing a way to watch Hulu on the Apple TV?
May 27th, 2010 at 4:39 pm
@Kelvin — Right, and the labels have previously been pretty clear that they think free ringtones constitute infringement. Stupid, IMHO — they should thank users for the free publicity for their songs. From Jake’s comments above, I understood that he thought as long as Apple made some effort to obscure the URLs, Apple was in the clear. And I agree that the devs who are enabling the downloading via this app, or the end users, may have liability issues for “stealing” or enabling “stealing” of the song samples.
@Jake — The Boxee thing is different, in my understanding (with the caveat that everything I know about this Palm app I’ve read in this post). Hulu, which is literally owned by the content providers, actively moves to block platforms from unauthorized downloading — not because they’re afraid of running afoul of the content providers, but because they *are* the content providers. I’m sure if the iTunes Store were actually owned by the music labels, they’d be pretty proactive in stopping this Palm app, too, given their past attitude toward ringtones as “public performances,” etc.
What sucks about the Hulu case, though, and what makes it different in my eyes, is that Hulu doesn’t lose any revenue from allowing Boxee to stream to other devices. When Boxee streams Hulu, the commercials are still there, just as they are on the website. You can’t skip them, either — just like on the website. There’s no other revenue stream from Hulu that I’m aware of. Advertisers should have been happy that Boxee was (incrementally) increasing their audiences, and Hulu should be thankful that devs are promoting their content, complete with ad revenue.
Hulu just wants to have a stranglehold on the content, which sucks for us end users. So do the music labels. I’m curious to see where Apple falls on this, but we know where their bread is buttered — I’m sure if the labels complained, there would be some changes at the iTunes Store.
May 27th, 2010 at 7:00 pm
Right, my point is this.
Free Music Ringtones : iTunes Store
as
Boxee : Hulu
Hulu & iTS certainly have the right to block any tooll they want. But I don’t think either tool is in violation of copyright law. The difference w/ Limewire & Grokster is that the services provided links to infringing content, while FMR & Boxee provide links & interfaces to authorized content. Just because they are accessed in a way that the provider doesn’t like doesn’t mean it violates copyright law.
May 27th, 2010 at 7:34 pm
Let’s agree for the sake of argument that free ringtones is infringement. Then I don’t see the same distinction you do between FMR and Limewire. The both provide an interface to *un*authorized content (one gives you a way to illegally download from Apple, the other gives you a way to illegally download from other people’s hard drive).
Just because Apple has a legit reason for hosting these files does not make them up-for-grabs, does it? Rhapsody has a subscription streaming service– would that be relevant to the legality of hacking into their servers and downloading mp3s directly?
May 27th, 2010 at 7:52 pm
Yeah, but the Rhapsody files are hidden behind a paywall, and require hacking to access. There’s no hacking required to get the iTunes music, they are free & clear. Nor are they encrypted, which could lead to DMCA charges. Apple could use either approach to lock up the files.
Of course, the whole thing is preposterous, developing a tool should never be a copyright violation, but our activist Supreme Court disagreed when they created the inducement standard (that Congress had declined to adopt) in the Grokster case.
On the whole though, I don’t think we should ever get to a point where Boxee could be found to be civilly liable for copyright infringement because they made Hulu shows available in such a way that Hulu disliked. FMR is an edge case, but if FMR is “illegal” software, then so is every browser that lets you change the user agent. IMHO.
May 27th, 2010 at 7:53 pm
Aren’t we all saying the same thing?
— Apple (and Hulu, and Rhapsody) all host copyrighted files
— Using copyrighted material outside the bounds of its licensed use is illegal, so using them as ringtones may be illegal (at least, we’re stipulating that, as Kelvin said)
— Therefore, end users who use these files as ringtones are violating copyright
— The developers of this app are enabling that copyright violation, but are not in violation themselves. Others have been found guilty in court of a crime for enabling that copyright violation (like Limewire) — essentially, it’s as if they’re an accessory to theft. I don’t think the court would see a distinction between Limewire and the developers here.
— Apple (and Rhapsody) have some obligation, probably in their contracts with the content providers, to make an effort to prevent unauthorized use (hence, obscured URLs, and DRM, for that matter). I suspect the labels will put pressure on Apple to stop this, at least if it becomes more than just a webOS app, which probably flies under the radar at this point.
May 27th, 2010 at 8:53 pm
I agree with all that from both Mike and Jake. It’s probably illegal to use this software for it’s intended purpose, but it’s not (or should not) be illegal to develop or distribute or install it. Guns don’t kill people, people kill people. Interestingly, what if you just used this software for previewing songs (and they disabled the button to make it a ringtone)? Then it becomes exactly like the Hulu/Boxee analogy. Apple probably still wouldn’t like it, but it would probably be legal on the part of all parties.
July 13th, 2010 at 5:15 pm
Free Music Ringtones mysteriously disappeared from the Palm App Catalog this past week. It’s still on my and Serena’s phones, though. I mentioned in the comments below how titillating it would have been if FMR had won Palm’s HotApps competition; I’d assume that’s what put it on Apple’s radar. iTunes Search, an app that does the same thing, is still being offered, as is a premium (paid) version of iTunes Search.
http://www.pyslent.com/?p=1910&cpage=1#comment-7538