Mac Lab Report

Apple vs. the US Congress, Rumor Mills, and DVD Jon

- 2005.04.11

It seems like everyone's picking on Apple these days.

For those of us who lived through the Dark Times, it seems like just when Apple starts to gain the slightest momentum, forces (both internal and external to Apple) conspire to bring it down again.

Some of these attacks are justified and others are not - at least in my opinion.

Apple vs. US Congress

"In a move that could effectively change the face of digital music, the US House of Representatives Intellectual Property sub-committee is discussing a bill that could require digital music companies to use a single digital rights management (DRM) system, which would mean that music downloaded from all services would be playable on any device." Deirdre McArdle, US Congress eyes Apple's FairPlay, Electric News, 2005.04.08.

Like Congressman Lamar Smith, I think that it was a mistake for Apple not to testify before the subcommittee. They are the industry leader in DRM for music, so the should have been there to state their opinion.

However, I also believe it is too early for Congress to force a solution on content providers. The different DRM schemes are part of what consumers are buying when they decide on a platform. VHS and Beta coexisted for a number of years before one format became more popular; legislation wasn't needed to make Beta go away.

When you buy iTunes, you are buying the entire system of music handling Apple provides - downloads, software, and iPod hardware. When you buy from others, you aren't. There's a clear choice, and Apple enjoys less of a monopoly in this market than Microsoft does with operating systems.

Summary: Apple is the right here, even if they act a bit arrogant about it.

Apple vs. Rumor Mills

Moving on to Apple's suit against websites that published proprietary trade secrets, as reported in many sites (for example, News Publishers and Internet Industry Urge Reversal in Apple Case, Kansas City Infozene, 2005.04.09), "A coalition of news publishers and two Internet industry trade associations filed friend-of-the-court briefs today in Apple v. Does, urging the California Court of Appeal to protect the confidential sources of journalists and defend email privacy. On behalf of three online journalists, EFF is appealing the California Superior Court's earlier decision in the case, which allows Apple to subpoena a journalist's email in order to discover the source of information he published about a forthcoming Apple product code-named 'Asteroid.'"

Essentially, Apple is trying to protect its trade secrets and is acting on the assumption that some company insider has provided details to the PowerPage website, that by obtaining the PowerPage email logs they would be able to discern the identity of the leaker(s), and that the writing at PowerPage is not journalistic and therefore not subject to the First Amendment.

A number of journalists and online writers have come out against Apple in this case, and I find myself among them. Journalists - even writers for rags like the National Enquirer - deserve the protection of the First Amendment. The First Amendment is for everyone, even if you publish a letter to your sister. The founding fathers didn't put a number limit on it.

Freedom of speech does not mean you can say anything you like any time you want. You can't yell "Fire!" in a movie theater without cause, and there are laws against slander. Still, Jason O'Grady should not have to give up his source to Apple, in my opinion, because that is protected private speech.

On the other hand, the information O'Grady published could conceivably have hurt Apple's business interests. I think Apple might have been better off suing O'Grady in a civil suit for publishing the information, regardless of where it came from.

For example, imagine there was a cookie company called Mrs. Weatherbee's Cookies that had a secret recipe its competitors had been trying to get for years. A leaker from Mrs. Weatherbee's transmits the secret recipe to a cookie baking website that is a big fan of Weatherbee's cookies. The website publishes the recipe, ruining its secret value for the cookie company.

If there is demonstrable harm, and it can be shown the website published information it knew was supposed to be secret, I think the cookie company ought to be able to sue the website for damages - but not to find out who the leaker was.

Web writers say that the case threatens all of journalism because it will set a precedent that no journalistic communication is protected. I think that's true. On the other hand, a defeat for Apple means that myriad trade secrets important to the well-being of companies will then be at risk.

Summary: Apple has been wronged here, but their approach to fixing the situation is flawed. Ultimately, in my opinion, Apple should lose this case. Hopefully they will find some other way to deter websites from openly publishing trade secrets.

Apple vs. DVD Jon

The third case is not a court battle but an individual who is bypassing Apple's encryption on iTunes Music Store purchases. I've written about Jon Lech Johansen before, and that missive generated a great number of email responses.

Jon's blog has an in-your-face attitude (it's title is even "So Sue Me"), and he claims what he is doing is providing a service for users who couldn't access the iTunes Music Store or do whatever they liked with downloaded music. He essentially has made a client for iTunes that doesn't add the FairPlay digital rights management at download, as iTunes does.

Apple responded by requiring an iTunes update to access the iTunes Music Store - and Johansen popped the door back open within a day. Since then, things have been relatively quiet, but I assume both Apple lawyers and Apple technicians are tasked with solving this problem.

I want to note that users of Johansen's software still have to purchase tracks in the first place; it isn't enabling stealing directly from the Apple iTMS - unless users are getting an unencrypted version from someone else. Which, of course, they'd never do, and, of course, Johansen can't control that any more than file sharing users can control who downloads copies of songs they don't own. (It's the old "I just built the nuclear weapon, I don't drop it on anyone" argument.)

When I wrote about Johansen before, I got a lot of opinions from people that essentially settled into the following categories:

  1. You bought the files, you ought to be able to move it around and do anything with it you see fit.
  2. The music companies have been ripping off consumers and musicians for years, so they deserve it.
  3. Apple should support Linux/Open Source and provide an iTunes for them. They use a lot of Open Source material and should give a little back.
  4. Even if it is illegal (which few people admit) to copy songs without paying for them, file sharing is the wave of the future, and your primitive, archaic twentieth century rules will fall by the wayside in the face of the coming wave. (The "Cluetrain" argument.)

All these points of view have something going for them. Addressing them is beyond the scope of this article. However, in my understanding of this case, what Johansen is doing is legal in his country, effectively, because two cases brought against him in Norwegian courts have failed.

This interview gives a pretty cogent overview of his attitudes and why he does what he does. Essentially, Johansen thinks normal users of the iTMS have "bought into the story of impending doom" for supporting Apple's proprietary format (or anyone's proprietary format).

The "story of impending doom" is that without encrypted music formats, no one will be able to earn money, so the motivation to produce music will collapse, destroying the music industry. That's pretty much been my attitude. (The wife says I'm always half-empty, so maybe that's why I think like that.)

For a small band, free music distribution is actually a good thing, as it increases exposure. For a huge artist of international fame, downloads are harmful as it decreases revenue (but, as they're rich, it doesn't matter, right?)

Presumably there's an artist in the middle for whom revenue from music is not quite what it would be if downloads didn't exist. Perhaps there are several.

I wonder if it is quantifiable about how many people actually use Johansen's utilities to strip FairPlay DRM. Consider these installation instructions from the DeDRMS-0.7 package.


DeDRMS

Compiling:

  • With MonoDevelop [1]: Open DeDRMS.cmbx and click F8.
  • With mcs [2]: mcs -out:DeDRMS.exe *.cs
  • With csc [3]: csc /out:DeDRMS.exe *.cs

Usage:

  • DeDRMS.exe file.m4p

Notes:

DeDRMS requires that you already have the user key file(s) for your files. The user key file(s) can be retrieved from Apple's servers using FairKeys [1].

DeDRMS does not remove the UserID, name and email address. The purpose of DeDRMS is to enable Fair Use, not facilitate copyright infringement.

How many Windows users will complete this sequence of steps and successfully figure out how to make this work? I see Windows users every day who cannot successfully save a file to a floppy disk. (I am not kidding.) Lots of them. Somehow I think the challenge is a little much for the typical user.

Maybe Johansen's right; maybe he's wrong. With tens of millions of iTunes Mac and Windows users, perhaps some thousands - let's be generous, hundreds of thousands - will actually attempt to circumvent iTunes DRM. That's a sizable percentage, maybe even as much as 5%.

I predict that sooner or later Apple will respond technologically again, if they can figure out a way to do so. Apple is obviously concerned, or they wouldn't have attempted the update a few weeks back.

The question is whether they were concerned out of principle or if there was an actual detectable effect of loss of revenue due to DeDRMS and its fellow utilities. There may be a point of diminishing returns if all they do is draw attention to Johansen.

Summary: Johansen's view is that he's on the moral high ground here, and so far there are no legal means to persuade him otherwise. I disagree, but I expect that'll carry about as much weight with him as his opinions expressed to Apple Legal. In the end, despite the press and the Net buzz, maybe he's just irrelevant to Apple's bottom line. (Insert your anecdotal story about all the people you know using DeDRMS here).

I suppose if you've read all this you've already decided I'm an Apple apologist and think the company can do no wrong.

That's not the case. For example, I think it's wrong to copy Windows installer disks and give them to your friends. I think it's proper that companies that sell police uniforms check to see if it is actually policemen who order them. I think it's good that lock picking tools are not available at Walmart.

In these particular cases, I think Apple is mostly in the right but handling some of the situations badly.

A reminder: Letters you send to me are eligible for later publication unless you specifically say otherwise.

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is a longtime Mac user. He was using digital sensors on Apple II computers in the 1980's and has networked computers in his classroom since before the internet existed. In 2006 he was selected at the California Computer Using Educator's teacher of the year. His students have used NASA space probes and regularly participate in piloting new materials for NASA. He is the author of two books and numerous articles and scientific papers. He currently teaches astronomy and physics in California, where he lives with his twin sons, Jony and Ben.< And there's still a Mac G3 in his classroom which finds occasional use.

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