|Sunday, May 11, 2003|
Welcome folks from MacSlash.
Let me re-iterate something -- I am not a lawyer nor do I pretend to be one on TV. What follows is the result of actually reading the iTunes license agreement and following up with a bunch of research into the copyright laws/guidelines and the legal guidelines and fee schedules associated with broadcasting on the Internet (generally referred to as webcasting). I did this because a well respected friend had raised a question regarding the potential legality of the various share aggregators. While I found a lot of folks that had written lengthy opinions regarding this subject, most admitted fully that they had not only not done any research, they hadn't even read the iTunes license agreement. As I have said repeatedly, IANAL, this may be wrong, and I'm really hoping someone with a legal clue will provide some useful feedback.
In response to the first useful feedback from someone with IP law experience: This is not legal advice. If you have a real legal issue, consult a real lawyer. I am not a lawyer.
It seems that there is a bit of a stink in the community regarding the potential [il]legality of the playlist sharing feature in iTunes when opened up to the general product via the various sharing trackers popping up.
I decided to actually read the license and do a bit of research within the limitation of my I-am-not-a-lawyer knowledge base.
The relevant paragraph from the iTunes license:
IMPORTANT NOTE: This software may be used to reproduce materials. It is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. This software may also be used for remote access to music files for listening between computers. Remote access of copyrighted music is only provided for personal use or as otherwise legally permitted. If you are uncertain about your right to copy or permit access to any material you should contact your legal advisor.
Personal Use is pretty clear; use it on your own network or between your home machine and the office to share your own music.
The interesting phrase is as otherwise legally permitted.
There is precedent -- Microsoft's 3 Degrees has been doing "streaming music shares" for longer than iTunes. Assuming that even Microsoft couldn't sign a blanket license deal and would not otherwise pay the webcasting license fees as dictated by the RIAA (and incur the headache of tracking streams and their contents of all the users of 3 Degrees), it appears that Microsoft and now Apple figured out how to implement this in a legal fashion.
That changes the nature of the question: is it legal to publish a link to an iTunes music library in a public forum and invite the world to listen? Since the industry seems to assign all rate schedules, licenses, and one time fees to "webcasting", is the sharing of an iTunes 'daap' URL (the direct URL to the music library -- or just the hostname if copy/paste is not beyond your means) an act of "webcasting"?
So, what defines webcasting?
We already know that iTunes is using a streaming protocol to deliver content. As such, the shared music is never entirely stored on the client computer (there are applications that do support downloading the content from the share to your local machine -- doing so is clearly in violation of the copyrights associated with the downloaded content, if said content's copyright does not allow such acts of duplication).
Clearly, iTunes cannot broadcast to a large audience. It is limited to 5 users. In practice, it is likely that fewer than that can be supported -- 5x 128kbit/sec is way more than the average upstream bandwidth available to most consumers (when considering the definition of webcasting and the implications therein, the technical or market limitations are irrelevant -- it is all about the limitations inherent to the implementation).
iTunes music library sharing certainly supports full bore interactive browsing of the playlists. That is, the client can fully search and select from all content available from the shared music library.
Finally, the content of the shared library is certainly not delivered live.
So, it would appear that iTunes music sharing is not considered to be webcasting that might otherwise be subject to licensing fees under the RIAA's webcasting rates schedule.
The act of storing, organizing and publishing a collection of daap:// URLs (the URLs used reference an iTunes shared library) in and of itself is likely not a violation of the license either (my rather ignorant-- but researched-- humble opinion). However, the claim could be made that the discovery of the daap:// protocol was a violation of the DMCA's reverse engineering clauses. Even if it is, applying it to sites that are sticking 'daap://' on the front of a hostname would probably be tough (if made to stick, the sites could just post hostnames/IP addresses and let the user deal with the arduous task of copy/past'ing the string into iTunes' connect to server dialog box).
I may be completely wrong in my analysis. As I said, I'm not a lawyer. At the least, I hope this pisses off someone who does know to the point that they provide me with a clue (after which will happily update this article).
In practice, the sites that are published via the trackers are mostly useless unless they have a really fat upstream pipe. I have yet to connect to one that didn't rebuffer every N seconds (where N is low enough to be very annoying). I have, though, discovered a bunch of music that is now on my "must purchase some day" list -- so, if anyone from the RIAA is reading this, music sharing does increase sales.