iTunes 4.6 and fair use

Apple released iTunes 4.6 today under the guise of an update to enable “AirTunes” for their fancy new Airport Express (which, by the way, I’d be happy to accept as a gift from anyone who reads this). Also hidden in this update are “other minor updates.” Reading this in Software Update today concerned me, as do most unlisted “updates” or “upgrades.” Many times, these unquantified changes include bits of code to limit fair use. Such was the case with iTunes 4.6. Now, believe me, I’m not some music pirate, out there to take down the recording industry via profuse downloading of low bit-rate copies of the latest Britney Spears single. I’ve long been an advocate of “legal” music downloads, and I was a very early adopter of the iTunes Music Store (iTMS). I’m also a certifiable Apple evangelist. My beef here is fair use. By use of a simple piece of software, one can remove the “Digital Rights Management” (DRM) of a song purchased through the said store. iTunes 4.6 now makes these “unlocked” copies of songs unplayable. But, Greg, you are asking, didn’t you just say you aren’t a pirate? That you are all for supporting legal downloads? Yes, I did, and I am (supportive of legal downloads). I am also an advocate of “fair use.”

What is “fair use” anyway? Well, to put it simply… how many of us buy a CD, and only listen to it in one location, and only with our headphones? Sure, I bet we all listen to music that way sometimes, but it’s obviously not the only use for our music. Some of us crank it through our stereo system when we throw a party. We put it as the background music on our silly little home movie experiments. We stick it in our car stereo, turn it way up and roll down the windows. Am I wrong?

There are lots of ways we use our music. But, according to the folks behind DRM, we aren’t allowed to do things like that. Public performance (such as playing the music for a group of people… and I’d say many house parties are extremely public) of CDs isn’t allowed (at least according to the liner notes of every CD I’ve ever seen). Try and use some of the tracks you’ve bought via an online music store in your favorite home movie creator software. With the exception of Apple’s iMovie (which, last I checked, still allows iTMS songs), you can’t. DRM won’t allow it for two main reasons:

  • You might be using such software to make unauthorized copies of YOUR music
  • If that music is used in the production of some piece of media, the labels want royalties (never mind it’s just your home movie of your kid’s 5th birthday)

Another little beef is trying to play these DRM’d songs on a system that doesn’t support the software. For example, say you want to play the songs that you legally purchased via iTMS on a Linux computer. Many people set up Linux-based music servers with old PCs they have to save some resources on their work machine, and to allow them to play the music on whatever computer they please. You can play AAC files (the format backed by Apple) on Linux machines… just not the “protected” format of iTMS. So, the new album you picked up online is unplayable via your preferred method. Or, if you own one of the portable jukeboxes that support AAC (aside from Apple’s lovely iPod), you still can’t use it to play the music you purchased. A bit annoying, right? Fair Use is the argument against this violation of people’s rights of ownership.

I mentioned a program above that removes the DRM encoding from songs purchased from the iTMS. Early versions removed all traces of being derived from iTMS songs, and thus made them regular AAC files. In a recent update of the software, the programmers did a noble thing and left in the iTunes proprietary ID3 tag of “Account” which said who had purchased the file. This way, if people were to use the software for piracy (ie. mass exchange of ill-gotten music), someone could figure out who was behind it via the tag. But, with the iTunes 4.6 update, Apple is blocking out any music tracks that are unprotected but contain the said tag. To quote a user of the message boards at the website of the software:

Idiots. We had a perfectly viable solution to the fair use problem by using hymn which leaves the id in. All this new version of itunes did was piss me off enough to tell people how to remove the id, which I am completely against having to do! There’s absolutely no reason for apple to make this change at all. It’s just going to force people to take a bigger step in the the direction they’re trying to prevent in the first place. Like I said, IDIOTS.

In summary, now Apple is just encouraging the developers (or anyone else with the freely available source code) to make a new version of the software, minus the inclusion of the tag, which, as noted, helps against piracy. Confusing.

So why do I have such a problem with all this? I mean, yes, all 400+ songs that I have purchased via the iTMS still play on my computer; they still play on my iPod; I can still burn CDs and play them on a number of computers. My problem is such: When I buy a physical CD, I know that if I stick it in pretty much any CD player in the world, I know it will play (barring physical damage to the CD or the player). When I buy a song, an EP, or a full CD from iTMS, however, I’m not guaranteed that it will always play. The initial release of iTunes’ FairPlay DRM allowed for 10 burns of the same playlist, and 3 computers authorized to play the song. Then, recently, the DRM was changed to allow more authorized computers (5) and fewer burns (7), at the urging of the record industry. This is disturbing. The record industry has a long history of, shall we say, less than civil unilateral movements. Just pay attention to news sites, and you’ll see paramount evidence of such. Will there be another update to the DRM in the future that changes the number of times a song can be burned from 7 times in a certain playlist, to just 7 times total? There is nothing holding them back from doing it. And remember, all these changes to the DRM are retro-active… so a song you bought a year ago with the old DRM now follows the new DRM. Will there come a day (and I’m sure the companies would love this) when you can’t burn the songs? When you can’t use them on more than one computer? More than one iPod like device? Or even worse… expiry dates. Update the DRM so that songs become unplayable after two years, three months, etc? The idea has been toyed around with my record execs for a while now.


p style=”text-indent: 5px”>All these restrictions (and proposed price hikes) are going to absolutely destroy this fledgling industry if Fair Use keeps being ignored and attacked. The labels have a huge chance to lure the users of P2P networks into a legal, viable option for downloading, but not if the option becomes a trap. People (hopefully) won’t stand for it. One thing is for certain: my days of buying music downloads are numbered. If you need me, I’ll be at BestBuy, purchasing the same albums available online, but at a lower price, with non-lossy audio, and best of all, a physical copy that they can’t retroactively control.


  1. You know what’s more striking, PCs are comming in with new DRM that will override your older CD collection, so as Stereos.

    But here’s one thing. Congressmen Rick Boucher is indeed going on the attack on the recording industry, because of all the trouble the consumers are going through. The bill, called DMCRA (Digital Media Consumer Rights Act) is a fix towards that crummy DMCA bill which entitles consumers to circulumvent the technology for the rights to do so.

    But the Recording Industry has all the money to block the bill. We are even seeing Grocery Stores and other stores being sued by playing Music over the speakers as shoppers are being allowed.

    But Copy Protection arn’t the only things we are experiencing. Universial is adding technology to the CDs that actually limits the number of times a person can play the CD. The Play20 Play-protected CDs will only play in PCs, only play up to 20 times, won’t play without the consumer’s registration, and will warn consumers when you are on the last 3 plays that it’s time to buy another copy. WHAT!? Are you kidding me? We will NOT accept this. Warner Music is adding new technology that forces ads to be played and the CD can only be played when headphones are connected. They are also putting forced commercials and will making “skipping of tracks” no longer an option. Sony BMG and EMI are also planning to implement these technologies in the CDs.

    We MUST DO SOMETHING! Here are the options on how to do them. My next option is just to stick with FM radio. If the recording industry plans to cease these license and no more music is being played, than we will just stop listening to music, go on to talk radio and try to come up with conversations on the unfair practices from the entertainment industry, and DON’T buy ANY MORE MUSIC until the recording industry listens. Maybe the Recording Industry may owe us an apology for all these “antitrust” actions against these consumers.

    Yes, but who can block this? You can. If you receive a copy protected CD? Ignore the license and never buy them again. We have enjoyed the music, and the public performance (such as parties) is what fueled the boom of the CD sales. If they put unfair restrictions on your listening pleasure, you can do one thing. Don’t buy any more music until the recording wakes to their senses. Because they can only haggle so much till the consumer walks away. And those copy-protected, un-track-skippable, play-protected, commercial-ad CDs go way overboard.

    It’s time to act. Write to congress about this. We are allready seeing lawmakers worried about this, and we need to let the industry know that fair use, end-user flexibility, and the freedom of the music is so important to the market. Putting restrictions on the usage of music, and the market will stagmate, innovations will be halted, and what’s worse, we could be heading towards another depression, or worse, an economic disaster. The Recording Industry needs to open their ears to the consumers about this. Don’t buy any more music with any copy protection on it, Don’t buy computers equipped with the “Pentium D processer”, and don’t download any more music. Just stick with radio now. The Recording industry had their ball to screw us. But know what, you have the ball to us. Use it! It could get the Recording Industry to change their behavior in favor with the consumer.

  2. James,
    You show many reasons why I am so into independent artists. For one thing, the music is generally much better (at least, I think so… I’d much rather listen to Red Bennies than the latest Nelly/Tim McGraw “joint”) and more creative. Also, I take great pleasure in being able to hand my 10 bucks directly to the artist, after watching them play, and know that, hey, they may be able to make it to their next show or get a new pair of shoes or something.

    (and having worked in radio, and knowing quite a few people in the industry… FM isn’t all that much better than the recording industry. I’ll stick with getting the majority of my music through shows, downloads from the artists and independent labels who are more concerned with their artists and fans than they are with global domination)

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