iTunes and DRM: When more is sometimes less

Posted on April 30, 2004 by Ian Betteridge

When Apple released the latest version of the iTunes Music Store along with iTunes 4.5, it introduced a lot of features that I like a lot. On Windows and Mac, iTunes remains my favourite music application, thanks to its ease of use and features. And, in a sense, I’ve already tied myself to Apple technology here, as I’ve just finished ripping every CD I own to AAC, rather than MP3 or WMA.
But with this release, Apple also did something that illustrates why, despite my liking for Apple, I’m uneasy about the FairPlay DRM used by the iTunes Music Store: it changed the rights that consumers have when buying songs from the store, changing the number of times a playlist can be burned to CD from 10 to 7, and the number of machines that you can use a song on from three to five.
On balance, and for me in particular as I burn CDs about once a year, that’s probably good news for customers, giving a better balance of rights. But the key point isn’t that I got more rights: it’s that Apple could vary the rights on music I have already bought. It’s as if I’d bought a CD, and suddenly the record company called me up and said I could now only play it during the week, and if I wanted to hear that music at the weekend, I’d have to buy another copy.
It also gives the lie to Jobs’ consistent attack on subscription services. A classic example of Jobs’ view is this quote, from Rolling Stone:

People don’t want to buy their music as a subscription. They bought 45′s; then they bought LP’s; then they bought cassettes; then they bought 8-tracks; then they bought CD’s. They’re going to want to buy downloads. People want to own their music. You don’t want to rent your music – and then, one day, if you stop paying, all your music goes away.

Jobs is right: people want to own their music. But that means NOT having what you can do with it changed at will by a record company or, for that matter, a computer company. Jason Schultz hits the nail on the head, finding the relevant passage in Apple’s iTunes license:

Any burning or exporting capabilities are solely an accommodation to you and shall not constitute a grant or waiver (or other limitation or implication) of any rights of the copyright owners of any content, sound recording, underlying musical composition or artwork embodied in any Product.

In other words, although they won’t take your music away from you, what you can do with it is up to them. Hardly owning your music, is it?
FairPlay is a compromise, and one that’s more consumer-friendly than the equivalent in Windows Media or any other system. But it does represent a change in your rights compared to buying a CD, and ultimately it means you no longer own your music. Much as I love the convenience of the iTunes Store (and I’m looking forward to its European launch), that’s why I’ll carry on buying CDs and ripping them instead, or buying from those brave and forward-thinking companies (like Warp Records) that will sell you an un-DRM’d file.

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  • http://www.dgen.net/biog/gavinstarks.htm Gavin Starks

    It’s a disturbing sign indeed. One important point though – you’ve *never* owned your music. Buying a CD merely buys you the license to play it off the media. You’re not buying the music, but the license. The difference is that the license was fixed because it was printed on the LP/tape/CD. Now Apple/etc an change the landscape more easily, but consumers will vote instantanously with their feet if they get it wrong or feel it’s unreasonable.

  • Geniver

    It sounds like you prefer the old rights over than the new rights. Don’t upgrade your iTunes software and your iPod firmware, and you can keep your old rights.

    It’s amazing how many blogs today are complaining that Apple never adapts. Now we have Technovia complaining when Apple does responds to consumer demands.

  • http://technovia.typepad.com Ian Betteridge

    Geniver, that would be an option: except that, first of all, I could never buy another song from the iTunes Music Store and, secondly, when Apple upgrades OS X and no longer supports the previous version, I’ll end up with unusable songs if I ever upgrade.

  • Frank

    It’s probably not Apple’s doing, more likely dictated by the music industry. As they navigate the rough waters on going international, I’m sure there will be other small changes to try to harmonize everything as close as possible.

    But, this isn’t an Apple problem, it will affect all in the business.

    Displeasure should be directed at the source rather than the messenger.

  • Kev

    Per Geniver’s comment, I think you can update the iPod firmware without any effect on the DRM rules. It’s only iTunes that controls the burning of the exact same playlist; so just don’t use iTunes 4.5. Your complaint is that they changed the rules. But they have only changed the rules going forward since you can still use your old software. And I think the new rules are way better for the honest user, but worse for the illegal distributor.

    Why? Because I can’t think of any good reasons why a person has to automatically burn the exact same playlist more than 7 times, if they aren’t distributing it. (BTW, if you make multiple playlists with the exact same songs, you can burn for a long time with just a few clicks every so often.)

    Also the Jason Schultz passage you refer to is implicit in your license when you buy a CD/tape/cassette. When you get a physical item, it has the copyright symbol on both the CD and the liner. That symbol conveys certain rights and restrictions to you. When you buy electronically, you have no CD or liner, therefore, it is explicitly stated in your use of the iTMS. So when you buy a CD, you might think of it as saying, “Your use of this Product shall not constitute a grant or waiver (or other limitation or implication) of any rights of the copyright owners of any content, sound recording, underlying musical composition or artwork embodied in any Product.”

    Just so you know, I don’t think DRM is the perfect solution because it does limit my legal personal use of music on all the playback devices I might have. (BTW, new rule moving in right direction – 5 is better than 3). But if everyone were honest, we wouldn’t need it. But that’s the price we pay for now as long as people keep stealing music, until (if ever) technology can provide something better. So it may be disturbing, but we should keep speaking up for increasing legitimate use rights, not in any way to help illegal distribution.

  • http://technovia.typepad.com Ian Betteridge

    Frank: I suspect you’re right about who’s dictating the terms.

    Kev: Yes, owning a CD doesn’t mean I can copy it ad infinitum and sell copies. However, I do have the right to resell it, give it to a friend, or whatever – all prefectly legal.

    And that’s the comparison that Jobs is making, when he claims that you OWN the music you buy from iTunes. In fact, you don’t, any more than you have ownership in a subscription service.

    What I’m thrashing against is not FairPlay’s restrictions (they’re no onerous, as you point out), but the Jobsian Spin that iTunes Music = your property. It isn’t.

  • http://technovia.typepad.com Ian Betteridge

    Oh, and another important difference: my rights with regard to the CDs I own are limited solely by the law of the land, and can be changed only by act of goverment. My rights with a song bought from iTunes Music Store are limited by the whims of Apple, and can be changed by it at any time. See the difference?

  • Leland Jordon

    Isn’t it true that you can burn unlimited CDs of playlists that do not contain iTMS-bought tracks?

    I’m also expecting to hear that Apple wanted to increase the number of authorized machines for protected tracks, but the record companies told them to cut back on the number of playlist burns as a compromise.

    Apple is like your immediate supervisor in your company regarding iTMS tracks, but they have to abide by the deals that the record companies (like another department in your company) decide to agree with. Apple has to approach them with plans for changing DRM agreements, and they have to go with whatever the record companies allow them to do. After all, the record companies own the recordings, not Apple. You can’t blame Apple for doing only what the record companies allow them to do.

    Frankly, I have yet to burn a single CD of any of the tracks I bought via iTunes. I just listen to them with my iPod anyway.

  • Ron

    My understanding is that not only has the number of burns changed, but rearranging the playlist to burn more will not work anymore. Which, I guess, means that if you have burned a song 7 times, that is it.

    I suspect that if you mixed that song with other songs that had less burns, the burning process would skip over it. Does anyone know?

  • http://technovia.typepad.com Ian Betteridge

    Leyland: Yes, if your playlists don’t contain iTunes Music Store tracks, you can burn them as many times as you want. Like you, I’m not a proflific burner: I’ve two CDs in about three years. :)

    Ron: That’s interesting, I’d like to hear confirmation of that.

  • Tim

    ” Which, I guess, means that if you have burned a song 7 times, that is it.”

    Not true. Jobs was very clear in the conference call that any individual track purchased from iTMS can still be burned an UNLIMITED number of times.

  • jdb

    There are so many simple workarounds to the playlist burning limit that I think this DRM change is very very good for the consumer. Apple is responding to requests from users and also trying to appease the recording industry. I don’t envy that conflict.

    A very simple workaround for the playlist burning limit is to create a 10 second silent track and add it to the end of your playlist. Modify as needed.

    This doesn’t address the broader question, is it good for consumers that Apple can change the rules of the game in midstream? The only real answer to that is to remember that Apple has to keep consumers happy to keep their business. If they change the rules in a way that makes purchasers unhappy, there goes the golden goose. I think you can trust basic capitalism to protect your purchases.

    If you are very paranoid, burn audio CDs. Yeah you get a generational loss if you ever convert back to AAC or MP3 but there is no way that Apple or the recording industry can remove your access to the music that you bought. All they can do is degrade the sound slightly.

    For myself, I’m not particularly worried about this. The threat to raise prices is much more troubling.

  • http://www.riveroflifecrc.com Tony

    I can tell you why the limit of 7 burns is a problem. I had trouble burning a CD tonight. I tried several different discs and formats. Unbeknownst to me… I hit the magic number and a CD I just bought is limited to my PC. That is not right. I now have no way to tuning into some great songs because something I bought is limited. I am skeptical from now on.

  • http://www.riveroflifecrc.com Tony

    I just tried adding a 10 second track into the playlist, the songs from the album purchased regardless of how they are mixed into the playlist will not record under any circumstances. Each purchased song gets 7 burns no matter what. FYI- exporting the file to an SD disc for my palm counts as a burn. This is crazy!!