EFF To Apple: Free Speech Isn't a DMCA Violation
Apple has always been very protective over their proprietary software. The company doesn't want anything but iTunes to control an iPod - and for good reason, too. The iTunes Store is a money-making machine with over 65 million active customers helping the company sell billions of songs, videos, and apps. Despite iTunes' popularity, however, there are still those out there who would rather run their own software.
Reverse-Engineering iTunes
In order to make an iPod work with an alternative software program - like gtkpod, Winamp, and Songbird, for example - developers need to understand a file called iTunesDB. To prevent people from writing to this file, Apple protects it with a checksum hash which has to be reverse-engineered. Usually that process only takes a couple of days.
With the latest iTunes update, Apple has once again changed the hash, meaning it needs to be reverse-engineered again. The developers doing so collaborate together and share their thoughts on iPodhash, an open-source project hosted on Bluwiki, a free web site that lets users create wiki pages.
Now Apple has asked for that site to come down, a request that the Electronic Frontier Foundation (EFF) says is out of line. Earlier this month, a lawyer from Apple's legal firm O'Melveny & Myers sent out a takedown notice to the site stating the content was illegal under the terms of the U.S. Digital Millennium Copyright Act (DMCA). According to the cease-and-desist email, the site is "disseminating information designed to circumvent Apple's FairPlay digital rights management system." It continued, "FairPlay is considered anti-circumvention technology under the Digital Millennium Copyright Act. The DMCA explicitly prohibits the dissemination of information that can be used to circumvent such technology."
The EFF has jumped on this case, saying that Apple "doesn't have a DMCA leg to stand on." According to EFF senior staff attorney Fred von Lohmann, this move is effectively bending the law in order to stifle free speech. "Apple is essentially saying here that people can't even talk about the mechanisms that Apple uses to lock in its music to the iTunes software," he said.
The EFF web site goes into more details as to why the EFF believes Apple to be in the wrong, listing the numerous reasons why there's no DMCA violation on the site.
Where Does This Leave The Linux Community?
Since the Bluwiki site has complied with the takedown notice, the question is where does this leave the Linux community now? The main reason for the iPodhash project's existence is due to the fact that Apple does not provide a version of iTunes that runs on Linux. The project is an important community effort that helps Linux users create software programs that work with their iPods and iPhones.
Bluwiki's founder, Sam Odio, had said he was unsure if putting the site back online would be possible. Says Odio of his compliance with the takedown notice, "I regret having to do this. I may be able to put the site back online, but quite honestly it's unlikely because I can't afford a legal battle with Apple." Luckily for him, the EFF is now involved, so he will not have to worry with the legal fees.
Apple may only be protecting their very profitable iTunes business, but in this case, they're suggesting that the DMCA covers people merely talking about technical protection measures. If that's so, then as EFF says, "they've got a serious First Amendment problem."
You can follow this case's progress on the EFF's web site, Odio's blog, and on the iPodhash project's homepage.
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If the site violates the DMCA anticircumvention law, then Apple should simply file a felony complaint with the FBI so that the owners of the site can be arrested. It is a federal crime to violate the DMCA anticircumvention law, after all. Unlike copyright violations, this part of the law has very sharp legal teeth.
I think the EFF is wrong on this one.
The DMCA limits free speech and the First Amendment.
This is already established in case law.
The EFF can try to use this case to fight it. But they have no standing yet.
For this to happen, the providers of the information that would allow circumvention of FairPlay DRM would first face arrest and imprisonment.
Apple can call on the FBI to arrest these people.
I’m sure they would like to spend some time in jail, spend money on criminal lawyers, spend money on bail, and face disruption of their lives in order to be martyrs to Apple.
Here’s some information from firstamendmentcenter.org:
The 2000 case of Universal City Studios v. Reimerdes considered whether computer programs that circumvented encryption protection for DVDs could themselves be protected as fair use. The district court noted that programming code, a means of expressing ideas, was protected in that capacity under the First Amendment. However, the court stated, “By prohibiting the provision of circumvention technology, the DMCA fundamentally altered the landscape.” Thus, the decryption software and anyone linking to it on the Internet violated the DMCA, the court ruled.
In 2001, the 2nd U.S. Circuit Court of Appeals in Universal City Studios v. Corley came to the same result as the earlier district court decision. The 2nd Circuit said that a decryption program allowing unauthorized and unlawful access to copyrighted materials loses some First Amendment protection for itself.
Here is some DMCA penalty text:
In addition, it is a criminal offense to violate section 1201 or 1202 wilfully and
for purposes of commercial advantage or private financial gain. Under section 1204
penalties range up to a $500,000 fine or up to five years imprisonment for a first
offense, and up to a $1,000,000 fine or up to 10 years imprisonment for subsequent
offenses.
It looks bad I suppose, but in Apple's defense I would say that forcing everything through iTunes allows control over movie rentals and insures that the music is not run on more than 5 computers. And in order to secure media from companies like Sony, Warner Bros., and such, Steve Jobs must assure them that these controls are in place or they won't allow their media to be sold on iTunes. I think it's probably really hard to get these people to allow online sales when their cd dvd sales are sagging badly. They need assurance that controls are in place.
"In addition, it is a criminal offense to violate section 1201 or 1202 wilfully and
for purposes of commercial advantage or private financial gain."
I think it would be hard to prove that an open source community attempting to write software to make a product they purchased actually WORK is done for the purposes commercial advantage or private financial gain.
I really hate Apple. More than I ever hated Microsoft. I hate being forced to use iTunes. It's a piece of crap software. A piece of crap medium. I don't want to buy your stupid Top 40 music from your online store. I want to put the music I have already aquired on my iPod. Why can I not do this without a specific ad-ridden, bloated, memory hog of a program that is forced down my throat by the manufacturer. Maybe if iTunes wasn't such a piece of a garbage, people wouldn't need to try to write other software. Maybe if they made a *nix version of iTunes then people wouldn't need to write said software.
Great story...Will there be a follow up?? Something tells me there's more to this story....
Frank
http://stuffididlastnight.com
That is not a big problem. There are many MP3 players that are better than the Ipod in terms of hardware and audio quality.
This idea may not be everyones cup of tea, but how about a boycott of apple accessories by linux users? Apple has not made their products linux friendly, and they are constantly impeding on the digital freedoms most of us open-source supporters hold dear.So if that's the case, why do we bother?
I know there are lots of great alternatives to the ipod. They aren't as trendy, and they wont make you "cool", but they play your music without the hassle. Don't just settle for drm and software lock ins because apple tells you to!
Funny...Apple resembles Microsoft more and more each day.
iPod's are the bomb, they're sleek, seem to hold up well over time, make for a decent size portable data storage, the interface is nice.
However i don't own one, why, iTunes. If i could just copy my music to it like a standard USB stick i'd buy one straight away. As it is i'll keep using the 4gb microSD in my mobile (which uses a standard micro-usb connection).
I guess the initial iPod sale is only the start of having to pay/put up with one so i see why apple wants to hang on to its current way of doing things.
Dont tell Apple that, you might pop their bubble!
jess
http://www.privacy.cz.tc/
@Esoteric:
"I really hate Apple. More than I ever hated Microsoft. I hate being forced to use iTunes. It's a piece of crap software. A piece of crap medium. I don't want to buy your stupid Top 40 music from your online store. I want to put the music I have already aquired on my iPod. "
Nobody's forcing you to use an iPod. There are hundreds of alternative MP3 players out there without the restrictions of an Apple iPod. So if you don't like it, use something else. Don't waste all your energy hating a company. It was your decision to buy an iPod after all. Why did you buy it? Probably because you like the user interface, or maybe the construction of the device ... well, nothing is perfect.
I drive a Mini Cooper. The run-flat tires cost $400 each to replace. I knew that when I bought the car. If I ever do have to have a tire replaced, I'm not going to bitch and moan and complain about how much I hate BMW/Mini. What would be the point of that?
I have no problem with Apple restricting the iPod as they do, simply because there *are* alternative players out there. If there weren't other alternatives, then I would probably care more.
@mike
What you are suggesting is that, i may like to drive a Cooper Mini but purely and solely because of BMW's Tire choice, i have to drive a corolla.
Sure, you know that the runflats in your Mini Cooper cost 400 to replace.
You can, however, at your own decision, replace them with whatever tires you deem fit. Pirelli P-Zero, Goodyear Eagle. Bridgestone Potenza RE55s. Et al.
They will fit on your car, and you car is drivable. it is usable.
an iPod, connected to a computer that cannot run iTunes (IE: linux) is not usable. Does that mean we have to either shell out for an OS that is bloated and doesn't suit us (again, that "i want a Mini, but i have to settle for a corolla"), or shell out for a player that doesn't suit me (FWIW, Motorola's Bluetooth transmitter and the almost de-facto standard of the Dock connector that swayed me. All other bluetooth enable players (all of about 3) don't have standardised sockets, and i'm not touching sony)
This and other Issues like this are the Reason I will never Own a Apple product, that includes, the Iphone, MAC, Ipod, etc.
When I buy something it want to control what I do with it, I dont want the manufacturer of the product I bought to then tell me how I can or cant not use it. I am not leasing the damn things
As noted above, the real answer is to buy a different brand of audio player. Preferably one that supports ogg vorbis. MP3 compression often introduces an unpleasant distortion to the audio. Ogg's distortion is much less noticeable, and less irritating. It is also more economical of storage, using about half the space that MP3 does for an equivalent audio quality.
Great post Sarah! I suggest everyone re-read paragraph two. It states that reverse-engineering this file is required to make your iPod work with alternative software.
THAT IS TO SAY:
Cracking this file lets you use your iPod as an mp3 jukebox without any need for iTunes.
This is not about DRM, or piracy IMO. It's about Apple locking up the hardware to prevent a legal, reasonable use. The excuse is "piracy" but the bad smell people notice is the monopolization that iTunes represents. It does media management, license management, and acts as the marketplace. And it's the only way to purchase iPhone apps.
They could have divided iTunes into a separate functional units, some of which are vanilla innocent things like "add mp3 to db", "play db item" and "playlist mgmt"
I followed the DeCSS wars and I do not fall for the argument that "reverse-engineering anything in iTunes is a violation of DMCA"
http://en.wikipedia.org/wiki/DeCSS
I need to find one of those t-shirts with the DeCss algorithm, and the long n
@nakey: "i'm not touching sony"
So you obviously have stronger feelings about Sony than you do about Apple then. I guess they've REALLY crossed some line in the sand, if you're not willing to even buy their products and then bitch about any limitations they might have :-)
If Apple isn't willing to support Linux or make their products work the way some users think they should work, that's their prerogative. It's not like they used to work a certain way and then they clamped down on it. They've never supported Linux and as far as I'm aware, you've never been able to just copy music onto the iPod directly.
Why people feel the need to complain about Apple's methods, instead of choosing a company that supports their way of thinking, I'll never understand. If you don't like the way the iPod (or any other Apple product) works, don't buy it.
If enough people choose a competitor over this issue, Apple's either going to have to face declining sales or they're going to have to meet the demands of the consumer. If not enough people care about this issue to make a dent in Apple's sales, I guess that proves that Apple's way of doing business is working.
And there's really no merit for anti-competitive measures here, in my opinion. There are plenty of alternatives to choose from, both in the hardware and the content delivery aspects.
If Apple suddenly added Zune compatibility to iTunes, allowing the Zune to work with all the features iTunes offers, but didn't give Microsoft the chance to add iPod compatibility to the Zune ecosystem, that would be an issue. As it stands right now, they're just supplying an end-to-end solution, but they're not really using their market leader status to drive other companies out of business.
Unlike Microsoft adding various features to Windows that essentially make other companies' products unnecessary, putting them out of business (Netscape anyone?) That's what got them into trouble over their monopoly powers.
@James Katt
I think the difference here is that bulwiki simply provided information that could be used to construct a to circumvent fairplay. Where as in the previous case, it was a discussion of the actual program.
The question is whether or not the DMCA restricts free speech such that a website with the hash code, not a program to actually circumvent the process, just some information that could be used in such a program.
Apple talks about circumventing Fairplay. But that is not what is happening at all. As I understand it they are only reverse-engineering the hash for the ITunesDB so that the IPOD will recognize the files you put on it. If I buy DRM protected songs from the ITunes store I would still need ITunes to do anything with them.
You can put any file you want on the IPod but the IPod will only use files that show up in the database file. This database is created by the user in the ITunes software. Allowing other programs to change that database might make it less likely that people buy music from the ITunes store but has NOTHING to do with circumventing the Fairplay DRM.
Esoteric wrote: "Maybe if they made a *nix version of iTunes then people wouldn't need to write said software."
Apple DID write a *nix version, it runs under OS X (which, technically, is a flavor of unix).
If you can't deal with Apple's changes, run Rockbox on your iPod and be done with it.
HONESTLY APPLE, http://www.youtube.com/watch?v=763vmCrRBDg
I believe you can use an iPod with Media Monkey (CNET has a post on this very subject).
More importantly, why buy an iPod? There's Zune, Zen, Sansa...all great player that don't pin you down to their store.
I truly don't understand why people still buy iPods when there's much better out there. iPods are dated.
The EFF says Apple is wrong to shut down a site that posted information on how to make the iPod work with Linux.
Share the (photographic) wealth! Now you can share your orkut photos with whoever you want
@Esoteric
Time for you to grow up kid, your churlish and puerile rant only serves to vitiate the validity of your tag.
The crux of the matter is that there will always be those trying to protect their interest with things that ironically use euphemisms like Fair Play, and there will always be those that think everything should be free. The truth is somewhere in between.
http://apple-investor.com
Dont tell Apple that, you might pop their bubble! hehe
Dont tell Apple that, you might pop their bubble! :)
Great post Sarah!
I believe you can use an iPod with Media Monkey (CNET has a post on this very subject).
More importantly, why buy an iPod? There's Zune, Zen, Sansa...all great player that don't pin you down to their store.
I truly don't understand why people still buy iPods when there's much better out there. iPods are dated...
Dont tell Apple that, you might pop their bubble! hehe!!
Apple talks about circumventing Fairplay. But that is not what is happening at all. As I understand it they are only reverse-engineering the hash for the ITunesDB so that the IPOD will recognize the files you put on it. If I buy DRM protected songs from the ITunes store I would still need ITunes to do anything with them..