- 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:
- You bought the files, you ought to be able to move it around and do
anything with it you see fit.
- The music companies have been ripping off consumers and musicians
for years, so they deserve it.
- 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.
- 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:
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.
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.
