The new iPods were released on Wednesday, along with a drop in the price of the iPhone – and Steve Jobs then announced a little tweak to allow an individual to “buy” a song solely for the creation of a custom ringtone. He was excited that you’d pay $.99 for the song and then $.99 to allow it to become a ringtone – still less expensive than most “premium ringtone” services. But during his presentation, he let loose a little slip that I haven’t heard mentioned on anyone else’s blog or on any news outlet. He said that the extra $.99 was for the rights to make the song into a ringtone.
Woah. Wait a minute. Don’t you already HAVE the rights to turn your music that you’ve purchased into ringtones? Let’s break down copyright just a little bit and find out.
There are six exclusive rights granted to the creator of a work. These six (reproduction, creation of derivative works, distribution, public performance, public display and the right to perform via digital audio transmission) can be granted to a “buyer” independently of any other rights and in fact, can be parceled even within one specific right.
This is why, when you “buy” a CD, you can listen to the song anywhere you can take the CD – and you can rip the songs from the CD to your computer/MP3 player. But it’s also the reason why you have to remove the songs from you computer/MP3 player if you ever sell the CD. You have a license to the songs – you didn’t actually buy the songs themselves (hence why this is important to us in the software realm).
But the deeper meaning of what Jobs said, without elaborating, is that the license you get from a downloaded song on iTunes is actually a more limited license than was originally considered by most consumers. Namely, that there is NOT included in the license the ability to make a ringtone. I disagree.
The only way this would be possible is if one of two things were happening. First, if you actually received notice when you were downloading the song that there was a more restrictive license in place; or second, if the ringtone is somehow going to be considered as a derivative work. As I’ve downloaded a few songs from iTunes, and actually read all of the license language that came with iTunes, I haven’t yet seen anything that would restrict my usage of a downloaded song. In fact, iTunes itself has a restrictor built right in – knowing full well that people won’t remember differences in licenses for each song – so it limits your ability to create a CD with a certain playlist more than a specific number of times.
That leaves derivative works. And I’m just not sure that a 30 second clip from a song – which hasn’t otherwise been altered, really constitutes a derivative work. I’ve never heard of someone playing a ringtone (mine happens to be a-ha’s “Take on Me”) that’s anything other than a clip from the song. If the 30-second clip WAS a derivative work (ie: was altered by the consumer in a way that made it a derivative), it would be problematic regardless of whether it was a ringtone or not. But taking a chunk of a song and playing it on your phone isn’t a derivative work – you are not required to play an entire song every time you hit the play button, and you can play your existing CD, for example, in your house, car, boat or portable player. Thus, Steve’s comments the other day don’t reflect the derivative work option.
In all, that means that you CAN create a ringtone from any song that you’ve already lawfully purchased/licensed. Apple and iTunes are making the recoding industry happy to charge extra for something that isn’t required to pay extra for (at the moment). This also lead to two possible ends to this story, both of which affect us in the software world:
1. Apple is just getting away with what the consumer population will let them charge. The average consumer doesn’t know the law – nor do they realize that they don’t actually have to pay to make a ringtone. They’re paying for the feature in iTunes to make one more easily. In the software world, this happens all the time, with vendors selling products based on “value” to the customer. Fuzzy math at best.
2. Apple is introducing a new licensing model for music – more restrictive than anything you’ve been exposed to in the past – licensed per consumer’s use (as opposed to commercial use, which is already restricted in this way). As consumers, we will either have to manually manage these different licenses, or technology will come up to “help” – but “help” is a misnomer, as I don’t want help with losing rights I already had.
As before, the software world feels this already and it’s just getting worse. License metrics are getting more and more restrictive – it’s now quite common to find double, triple and sometimes even quadruple license metric restrictions. Be careful what you agree to – as you’re setting precedent for what the industry will do to everyone else.
LicensingHandbook Archive 