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May 14, 2003


iTunes for the Taking
A discovery that's made the rounds on the Pho list blew into the open this morning thanks to a post from Kottke: to wit, anyone with a basic understanding of Cocoa can turn Apple's updated music software into a Napster-style file sharing machine. The modus operandi involves tweaking a feature that lets users stream music between computers connected to a network:
However, a few enterprising developers looked at how iTunes shares music and have been building applications that provide the other half of the Napster experience, the downloading of music from remote libraries. iLeech is a very simple, tiny program that lets you download music from any publically available iTunes library (and there are other apps that do similar things).

Conventional wisdom is that Apple seriously fucked up, the RIAA is going to sue Apple's pants off, and Apple's new iTunes Music Store will be shut down by some seriously pissed off record companies.

I'd like to believe an alternative theory. Apple had to know what they were doing with iTunes. Their engineers aren't stupid. They left the whole thing wide open and had to know how trivial it would be for developers to figure out the protocol and write apps to download the music directly. Maybe Apple is taking a stand here, saying that this type of software is not illegal and that it is individual users who choose to break the law. Apple knows that it's in our nature to want to share music, photos, and movies with each other and is building applications (social software?) to support that behavior. Apple wants to make a business out of this and maybe they're daring the RIAA to sue them over it. Or daring the RIAA not to sue them. After all, Apple and the record companies are all buddy-buddy now with the iTunes Music Store . . . are they willing to sue Apple right after getting Jobs on the cover of Fortune with Sheryl Crow? If Apple is in fact taking a stand here, I say, go Apple!

Count me with Kottke. Should record company attorneys be appalled? Probably — but with renegade users, not Apple. Suing a software developer over the misuse of a legitimate feature makes just about as much sense as the handgun liability suits filed against firearms manufacturers; in each case, the fellow who intentionally misused the product seems more blameworthy than the designer. iTunes can't steal music by itself, you know.

That said, the music companies do have a remedy in states that enacted the mini-DMCA. The model version of the law lets a "communication service provider" — any company that provides downloadable data, such as a record company, qualifies — petition a court to force the maker of an "unlawful access device" to make "remedial modification[s]" to "any communication or unlawful access device . . . that is in the . . . control of the violator." As intellectual property attorney Fred von Lohmann — the in-house counsel at the Electronic Frontier Foundationputs it:

When coupled with an "auto-update" feature, this provision could empower state courts to order technology companies to force "downgrades" on consumers nation-wide. For example, TiVo retains the ability to upgrade remotely the software on all TiVo units. AOL, Microsoft and Apple also provide automatic upgrade functionality in their software, aimed at giving customers the latest security and feature upgrades. If state court concludes that these vendors have the power to "control" their software, the court would have the power to order the "downgrade" of devices in homes nation-wide (and perhaps world-wide).
That's a tough argument to make — a plaintiff would have to convince a court that Macintosh owners use iTunes "primarily . . . for the purpose of defeating or circumventing any technology, device, or software . . . to protect any such communication, data, audio or video services, programs, or transmissions from unauthorized receipt." From a look at the RIAA's tactics of recent years, though, it wouldn't surprise me to see it make the attempt.

  • Business Week: "Taken together, the two [recent court] decisions are laying out a new direction for the record labels. Unless the RIAA prevails on appeal of the second decision, it won't be able to litigate file-sharing services out of existence. But it will be able to go after individuals who might be using those services to pirate tunes and flicks through their ISPs. These two decisions also effectively force the music industry to accept Jobs's assertion that the piracy problem is behavioral, not technological."
  • Wired: "[I]n the digital world — the global marketplace of ideas made real — we're on the verge of handing amorphous, context-dependent decisions to hard-coded software incapable of applying the snicker test. This is a problem, and not one that more and better programming can fix. That would just add more rules. What we really need is to recognize that the world — online and off — is necessarily imperfect, and that it's important it stay that way."

Greg G. @ 3:11 PM | # |