PlayFair - Back Online

[AhmedFaisal]

EU contract law states that upon purchasing a track from the ITMS you have made an offer which Apple has accepted, subject to implied and material terms and conditions, both effective subject to intention (see the rather ancient but still effective case of Carbollic Smoke Ball ). Terms can only be altered through two way negotiation and counter offer which does not happen here. UK domestic law does offer some protection given that the terms are pre-written, but only to the effect of being able to return the goods and since these goods devaluate from the outset even that does not operate.

Again: beach of contract or accessory to breach are both serious offences; too small in the case of de-authorising 3 MP3s, huge if you aided in the actions in relation to several hundred.

Apple's losses could run into huge figures through loss of revenue through future contracts.

EU law in this matter overrides German domestic legislation and besides the contracts are technically formed in the US so German domestic leg is kinda pointless...

You make business on our soil, you follow our law, even if the US may think otherwise. That aside, I still would like to see a legal precedent on that matter. It still remains to be investigated if the terms in the iTMS Agreement are acceptable under german/EU law, which, neither you nor I know since we lack a precedent. I have a pretty good feeling that alone the way they set up their right to change the rules of the contract at any given time including previously purchased items is not legal neither under german nor EU law.
Regards,

Ahmed

 

[space2go]

EU contract law states that upon purchasing a track from the ITMS you have made an offer which Apple has accepted,

Yeah and next thing is you tell us Apple is the consumer and the people buying stuff are multinational corporations that have to follow antitrust legislation..

 

[Windowlicker]

Now that you can no longer use iTMS songs in iPhoto slideshows or iMovies, I actually have an interest in looking into this.

I totally understand your point, but with iMovie, if you really need the music there, just burn it as an audio cd and rip the stuff back to computer.. iMovie will then recompress the sound anyway. ok it would be easier without the cd step, but if you really need it, it's no problem and doesn't cost you much anything.

 

[AhmedFaisal]

I've been reading all your posts and am amazed that I haven't read anyone defending the actual PEOPLE that create this music. These are the ones (OK not all of them) that have dedicated thier lives to making music...playing s*%tty gigs in hell holes half their lives until one day a record company finally says..."OK, I'll take a shot on you"...they dump millions of dollars into promoting the band and then people decide when they buy a piece of plastic or a digital file that "THE MUSIC'S MINE...I OWN IT!!, I'll do whatever I want with it".

Do any of you realize that artists have to pay thier record company back for all of the money thay spend on recording the record? The band has to pay the record company back 50% the cost of making a video?? Do you know it costs about $200,000.00 just to work a record to radio so it will be heard? Where do you all think this money comes from? ALBUM SALES!! And the artist doesn't see a cent of royalties until these costs are recouped.

Yes record compainies suck, but it's not just the record companies that get hurt when people stop RESPECTING THE MUSIC!!.

Oh I have a lot of respect for artists, especially indie ones that write their own music. Funny thing is, those guys are not clones out of RIAA's spartii cloning cylinders and are not their creation and not under their contracts. They play in smaller clubs and they sell and promote their own music. About 80% of the 6000 CDs I legally own are from these kind of artists, so I do think about them, and how much it was worth spending 30$ - 50$ for one of their concerts.
Regards,

Ahmed

 

[bpd115]

I totally understand your point, but with iMovie, if you really need the music there, just burn it as an audio cd and rip the stuff back to computer.. iMovie will then recompress the sound anyway. ok it would be easier without the cd step, but if you really need it, it's no problem and doesn't cost you much anything.

For the third time, you CAN use the tracks in iPhoto and iMovie.

 

[gemio17]

I've been reading all your posts and am amazed that I haven't read anyone defending the actual PEOPLE that create this music. These are the ones (OK not all of them) that have dedicated thier lives to making music...playing s*%tty gigs in hell holes half their lives until one day a record company finally says..."OK, I'll take a shot on you"...they dump millions of dollars into promoting the band and then people decide when they buy a piece of plastic or a digital file that "THE MUSIC'S MINE...I OWN IT!!, I'll do whatever I want with it".

Do any of you realize that artists have to pay thier record company back for all of the money thay spend on recording the record? The band has to pay the record company back 50% the cost of making a video?? Do you know it costs about $200,000.00 just to work a record to radio so it will be heard? Where do you all think this money comes from? ALBUM SALES!! And the artist doesn't see a cent of royalties until these costs are recouped.

Yes record compainies suck, but it's not just the record companies that get hurt when people stop RESPECTING THE MUSIC!!.

Doc

Ever seen Cribs on MTV?? Poor babies....

-I know it's not the point, but whenever people start crying about the artists all I can think about is Cribs and all the parading around a lot of these so called "artists" do. I have no problem buying alt./indie music, but from the supastars- the music I do actually like, if I can burn it from a friend, I have no problem with that. It may be wrong, illegal, etc. but I don't care! On the otherhand, I did buy a William Hung song coz I felt bad for him and think he should make as much money as possible before his 15 minutes are up!

 

[ktrout]

But, in the case of spyware, perfectly legal (as far as I have heard). The principle is pretty simple -- if you agree to it, you should keep your word.



I am not a lawyer, but I seriously doubt that that is true in law. You can indeed make backups of your music. You can keep your music on a limited number of multiple machines, and, if that is too onerous, you can back up your music to MP3 as much as you want (sure, it's in a degraded form, but copying vinyl records and cassette tapes also introduced degradation, and I don't recall people complaining about fair use violations).

As it happens, I am a lawyer (although copyright is not my area). If you look at the statutory definintion of "fair use" Congress was either lazy or flexible, depending on your point of view:

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Much of this law is undeveloped at this point. Presumably it will become clearer in time. As to simple backing up, it is hard to imagine that is not fair use. Backing it up on your ten closest friends' hard drives is more questionable. I should point out that home videotaping was veary nearly found to be an infringement of copyright--Sony won in the supreme court 5-4.

(As an aside, in my opinion, the conservative outrage over so-called "activist judges" is nonsense. Congress often passes deliberately vague statutes with the intent that they should be developed in the courts, and sometimes passes deliberately unconstitutional laws to score political points).

 

[SeaFox]

ps. Bold stands out more
Rich::

But what you are saying does not. <small grin>
Please don't boldface all your text, it makes posts harder to read overall.

 

[space2go]

I've been reading all your posts and am amazed that I haven't read anyone defending the actual PEOPLE that create this music.

In what way are the artists hurt when I - after BUYING their music - do whatever I like with it ? Except sharing that is. (I'd argue about that as well but that's OT here.)

One person paid for it, one person uses it and whatever said person does with it is nobody else's business.
Yes government(s) this means you as well!

 

[123]

Since when is it my 'right' to do what I please with music I did not record, write or create? Must have missed that in the constitution.

This is simple. They are saying we have this product which you can do this this and this with for a price of .99 cents. If you say "HEY GREAT DEAL" then buy it.

If you think the restrictions are too much, don't buy it. End of story.

Ever ripped a CD? Here's news for you, it's illegal to make copies. And I'm sure you know that, you even knew that before you bought the CD.

If you think the restrictions are too much, don't buy it. End of story.

 

[1macker1]

So what's wrong with the program. Apple's DRM doesn't stop piracy, if a person burns and then imports the songs back into iTunes in the Mp3 format. If apple gets upset about this, it isn't because they give a sh*t about artists losing money, it's about Apple being scared that they won't sell as many iPods.

 

[123]

So buy a CD, and put up with the very minor hassle of ripping it.

You're not supposed to make copies of CDs.

 

[AhmedFaisal]

You're not supposed to make copies of CDs.

This is one of those times when I wish for a lawsuit about this with someone like Larry Flint as the defendant pouring a bag of Britney Spears CDs in front of the Judge and then taking a leak on it and asking the judge with an innocent smile: "Can I do this with my CDs or is that illegal too now?"
Cheers,

Ahmed

 

[idkew]

I've been reading all your posts and am amazed that I haven't read anyone defending the actual PEOPLE that create this music...

Doc

because the majority of music out there is an investment. it has nothing to do with art anymore. that majority of musicians are no longer artists, they are business people.

 

[cmoney]

Yes record compainies suck, but it's not just the record companies that get hurt when people stop RESPECTING THE MUSIC!!.

Doc

Except NO ONE here is arguing for the "right" to pirate music (that I've seen at least). What people are arguing for is the right to use LEGALLY obtained music in ways that are TECHNICALLY against the agreement. e.g.: I bought a song on iTMS, I'd like to use it on my Creative Labs MP3 player from 1999 and keep the tags so when I look at that LCD screen, I know what song is playing.

TECHNICALLY, using hymn (and perhaps lame) to accomplish this this is a breach of contract because I agreed to that EULA. However, no one is harmed, there is no victim, money has been exchanged and the copyright owners (artists included) have been compensated. (Unless the record companies would argue I should be required by law to purchase another copy of the same song for playback on a device other than an iPod. Now, maybe Apple would have a stronger argument...)

Or e.g.: I'd like to ensure that I can still listen to the music I legally obtained in case Apple is kaput and the technology is obsoleted.

 

[SeaFox]

An agreement is only valid if the agreement is legal. Its the same as a prenupt. Of course if I can put in there that I will always get the kids no matter what and don't have to pay any support. I can write any jack I want in there. But that doesn't make it legal, even if my partner was going to sign it. Afterwards she can go to court and they will throw it in the trash where it belongs. So far no one has taken DRM to court to see if those restrictions were even constitutional, until then those agreements !MAY! be legal but they also !MAY NOT! be legal. Until we have a precedent, or better a supreme court ruling, I take my chances.
Regards,

Ahmed

In the prenup example you site:
1) Agreements of this type only cover financial assets. I don't believe you can write custody into one because what was deemed best for the well being of the child would overrule it, it would be a waste of time.

2) The prenup example the documant was taken to court and ruled invalid. This is the legal way of doing things. If you find the iTMS terms of service violate your right to fair use, go to court. That is the way you fight this correctly. Breaking the copyright restriction is no more legal simply because you feel the terms should be invalid. Until a court says so, they are.


Furthermore, you did get to see the terms of service before you agreed, and you did agree. If you felt them too restrictive, why did you agree at all? Because you were planning on violating them the whole time? Yeah, that will look real brilliant to the judge.

You can avoid all this by buying the CD's. The Cd's are too expensive? That's your opinion (the record companies feel otherwise) and your choice not to buy them. You have a choice, use the iTMS with it's retrictions, or pay for the CD's, you get what you pay for.

You continue to post like you have no choice but to use the iTMS, you always have a choice.

 

[cmoney]

Ever ripped a CD? Here's news for you, it's illegal to make copies. And I'm sure you know that, you even knew that before you bought the CD.

If you think the restrictions are too much, don't buy it. End of story.

So it's illegal for me to make a backup copy of a CD to keep in my car in case my car is stolen or someone breaks in a steals my CDs or the CD player in my car chokes and scratches the CD to hell? Yeah, it's illegal but I'd like to see the RIAA take that case to court. I'd like to see the headlines: "RIAA Prosecutes 3 million for Illegal Use of Backup CDs in autmobiles. Ford, Alpine Radio, Sony Automotive Named as Codefendants."

Anyone care to comment on "letter of the law" vs. "spirit of the law" and whether it applies here?

 

[cmoney]

You can avoid all this by buying the CD's. The Cd's are too expensive? That's your opinion (the record companies feel otherwise) and your choice not to buy them.

Of course, weren't they found guilty of illegal price fixing? In that case it's not just my opinion that they're too expensive.

Also, IMHO, CDs remain open for only so long, you can bet the record companies are spending more time trying to close the open CD loophole than trying to find a better business model to compete with new technologies. It's much better in the US, but in lots of countries around the world, CDs are no longer a valid option as they've got DRM up the wazoo.

 

[bpd115]

Of course, weren't they found guilty of illegal price fixing? In that case it's not just my opinion that they're too expensive.

Also, IMHO, CDs remain open for only so long, you can bet the record companies are spending more time trying to close the open CD loophole than trying to find a better business model to compete with new technologies. It's much better in the US, but in lots of countries around the world, CDs are no longer a valid option as they've got DRM up the wazoo.

Yes they were found guilty of that and I got a nice check in the mail as well

And there is no CD DRM that a sharpie won't fix.

Hey, instead of Fairuse or Hymn, they should call it "Digital Sharpie"

 

[dontmakemehurtu]

 

[RogerQ]

Per-playlist, not per-song limit

I have to keep track of how many times I have put that song on a mix so I don't go over the limit.

There's not a per-song limit, just a playlist limit. So you don't have to keep track. If you hit the wall on your playlist burns, just swap a song.

This is where the iTMS licences kicks kiester of those like WalMart, et al. Per-song limit means you absolutely will hit the wall at some point. Playlist limit gives you infinite access to a song.

--RQ

 

[cmoney]

And there is no CD DRM that a sharpie won't fix.

Hey, instead of Fairuse or Hymn, they should call it "Digital Sharpie"

Good point, so I'm writing to the RIAA to get them to declare the Sharpie a "DMCA circumvention device."

 

[123]

So it's illegal for me to make a backup copy of a CD to keep in my car in case my car is stolen or someone breaks in a steals my CDs or the CD player in my car chokes and scratches the CD to hell? Yeah, it's illegal but I'd like to see the RIAA take that case to court. I'd like to see the headlines: "RIAA Prosecutes 3 million for Illegal Use of Backup CDs in autmobiles. Ford, Alpine Radio, Sony Automotive Named as Codefendants."

Anyone care to comment on "letter of the law" vs. "spirit of the law" and whether it applies here?

No, "fair use" is the "spirit of the law". So, it's probably not illegal to make that copy to keep in your car (as it's for personal use, published, and you own a legally acquired copy of the work, besides, there's no effect on the market). The point I was trying to make is that if it weren't for fair use, it would be illegal to make any copies whatsoever. No more legal than copying a song you bought from iTunes.

 

[benoda]

People keep saying if you don't like it just go buy a CD or single.

That's fine an all, but why should buying a song off of iTMS be any different than buying the CD/single?

Shouldn't they be the same? That's what I would hope for at least - in an ideal world. So I expect to have the same options if I buy from iTMS as I would walking down the street and buying a CD.

That's what I expect, and as a result I am resistant to constraints.

 

[space2go]

Good point, so I'm writing to the RIAA to get them to declare the Sharpie a "DMCA circumvention device."

That's a start. Even better would be to get them to declare every device that actually can play music a DMCA circimvention device as every program that cracks any kind of DRM needs some hardware that can read the stuff first..