WalMart's way to the future
WalMart's launched a music downloading service. For just 88 cents, you can download a song in a Windows Media Player format. I tried the service. For 88 cents I bought a Beatles song (they've got a total of 12 available. Wuhoo!). When I went to play it, however, it wouldn't. LiquidAudio's server was not found.
But the real devil here is not that the service doesn't (yet) work. It is the details of the TOS. These are among the most restrictive in the business, authorizing 10 burns from 3 machines, but requiring you promise:
"You may not reproduce (except as noted above), publish, transmit, distribute, display, broadcast, re-broadcast, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, directly or indirectly, any of the Products, the Service or any related software. You may not reverse engineer, decompile, disassemble, modify or disable any copy protection or use limitation systems associated with the Products. You may not play and then re-digitize any Products, or upload those Products to the Internet. You may not use the Products in conjunction with any other third-party content (e.g, to provide sound for a film). You may not sell or offer to sell the Products, including but not limited to, posting any Product for auction, on any Internet auction site. All Products are sublicensed to you and not sold, notwithstanding the use of the terms "sell," "purchase," "order," or "buy" on the Service or in this Agreement."
So, the "Rip,Mix,Burn" culture has now been cancelled. Want to sync a song with the home movie of your kid? You can't. You've promised you won't. Want to display a slide show of pictures taken at Christmas? you can't. You've promised you won't. Any derivative use if banned by this agreement (and by the code built into WM9) -- and remember, if you use a tool to crack those protections, you've violated the DMCA.
Worse still, if you go to this page, you'll be informed that "What's more, you'll enjoy the same usage rights for ALL the music you purchase" as if you had purchased the CD. Here is where all the action is. What's happening with this download world is that the "rights" people have with music are now to be defined by licenses. Long before we have any useful litigation about the fair use rights associated with music, the licenses will define that you have only the right to play the music, and only the right to burn it 10 times. Anything more -- for any reuse, mixing, transforming, even for noncommercial use -- is not your "right."
This is the real aim of the "war" against "piracy." Focus the attention of the world on "pirates" and then "solve" that problem in a way that effectively removes all other creative rights for consumers. This is a total perversion of copyright law, as the late Professor Lyman Ray Patterson showed. The law, intended to regulate competitors, is now a tool for controlling consumers.
| Permalink | technorati
Comments (39)
Not to be a shill for Apple, but if this bothers you, go buy a Mac and use iTunes. I've been using songs purchased from the iTMS to make all sorts of derivative works for friends and family using iMovie, iDVD, and other tools. Of course it's not as free as using MP3s, but it does work.
Rip, Mix, Burn is very much alive on the Apple side of the pond, anyways.
-Chris
I'm sure using the audio for home movies is fine. WalMart is just making clear that you haven't purchased a license for a track to be used in a commercial film.
If WalMart wanted to make the commercial/noncommercial distinction, it could have done so without saying something that isn't true (ie, that your rights don't already include the right to sync for noncommercial purposes). Its license purports to remove rights you already have. But you may be right, pb. And if so, we've got some nice Creative Commons licenses that will do some good.
I'm not sure I see your beef, Lessig. We've got a service here than offers you fewer rights (i.e., these additional restrictions) for less money (11 cents less than iTunes). If part of the attraction of CreativeCommons is to get folks used to negotiating (or giving away) certain rights, why can't we depend on the consumer, and the market, to decide what level of rights it is they are willing to pay for? Or is it that a service that provides more limited rights is somehow inherently bad?
I mean, if CreativeCommons is so terrific (and I think it's cool and all), don't we also have to accept (and approve of) the idea that some parties might want to offer very limited rights to the consumer? Is this any more nefarious than that?
I think we ought to get used the idea that consumers are responsible for deciding what rights they seek to purchase if your sliding scale of IP rights is going to take hold.
I mean, if CreativeCommons is so terrific (and I think it’s cool and all), don’t we also have to accept (and approve of) the idea that some parties might want to offer very limited rights to the consumer? Is this any more nefarious than that?
I think the professor's problem is that Wal-Mart isn't up front about what they let you do with the song. In fact, their advertising is downright misleading about what you can do with it. As for letting the free market decide... What free market? The RIAA currently has an effective monopoly on music distribution. The consumer will use the digital music services they're told to use or none at all.
Though Apple's iTunes is nice, I'm willing to bet that the RIAA is now looking to crush it with these more restrictive services.
Rob-
A fine point, but it seems that the virtue of CreativeCommons is that it can normalize consumers to thinking about obtaining different levels of rights, and not that it just softens up IP rights.
As much as I think digital music swapping is cool and probably increases sales, if some band wants to offer its music ONLY on eight-track tape and only for use on Tuesdays, it ought to be able to do that and that folks should buy (or not buy) the music subject to those conditions.
You could have saved yourself the $0.88 by reading the (well-hidden) FAQ. The Wal-Mart answer to the iTunes Music Store doesn't work with MacOS becase it requires DRM v9.
Microsoft's Media Player site indicates that DRM v9 is Microsoft only (the MacOSX version of Media Player 9 only supports DRM v1.3):
One problem is misrepresenting that very restrictive license as the same as the normal first purchaser rights from a CD purchase. Another problem is the very high cost of the license.
Music CD-Rs cost 35 cents or less each and can hold a whole CD at full CD quality. That's for recordings which can be made and redistributed by any consumer, because the media includes a royalty in its price. Call it 3.5 cents per track, media included, of which 3% of the first transfer price is the royalty fee (though I'm using final transfer price here).
So far as I'm aware there's nothing in law preventing storage of MP3 or OGG or other more compressed formats on these disks, making them capable of holding perhaps 100 tracks, for 0.35 cents per track at a royalty of under 0.000195 cents per track.
I'm also not sure how someone accused of infringement for internet downloading but who had burnt the tracks on these disks would be treated. I am sure that 0.000195 cents per track is a lot less than 88 cents per track, even if you have to make ten of those cheaper royalty payments.
I'm sure that a license fee that's 450,000 times as high as the royalty in the non-internet world is not a good deal for a consumer. Wasn't the internet supposed to make things cheaper?
If you do want to restrict it to original CD format and get all ten possible licenses, it's "merely", 4,500 times as expensive. Sounds like a bargain, doesn't it?
Everyone was wondering what Wal-Marts entrance into the music download business was going to do to the competition. Well, it looks like the answer is "not much". Not with the policies they have in place now.
Want to upgrade your computer? Surprise, you can't move your purchased music to another computer. You have to burn it to an audio CD or lose it. And if you've already used your 10 burns, too bad. iTunes isn't perfect, but it works. And so far, no one is close to offering anything as good.
Is the intertainment industry ever going to wise up? A business cannot fight with its customers and win. Because even if you win (in court) you lose.
Your postion seems oxymoronic, MrFYAB:
"As much as I think digital music swapping is cool and probably increases sales, if some band wants to offer its music ONLY on eight-track tape and only for use on Tuesdays, it ought to be able to do that and that folks should buy (or not buy) the music subject to those conditions."
Please correct me if I'm wrong, but you seem to be saying that the ability of the music customer to share music "increases sales" while at the same time advocating the "right" of the musician to restrict the customers' ability to engage in that action.
Are you speaking with a forked tongue or did I simply misunderstand you?
--Jason
Why anyone would even go near Windows Media Player is a mystery to me. The rights you throw away by signing up with Microsoft and the Digital Restrictions Management they are foisting upon an unsuspecting public are draconian to say the least. The moment I hear something is in that format, I go the other way. Yes, it's that simple. WalMart? Buh bye.
Jason--that's not a "forked tongue", that's recognition of how things are right now. They aren't even contradictory positions. I too happen to believe that sharing increases exposure which increases the odds of a sale. At the same time, I know that sharing doesn't preclude getting people to agree to terms which will restrict them (legally speaking, not technologically speaking) far more than most people realize.
I host a community radio show called "Digital Citizen" every other Wednesday 8-10p. If you're in the Champaign-Urbana, Illinois area, I invite you to check it out. I talk about Free Software, copyright and patent policy, and related issues. I look forward to seeing more people joining me in engaging people in discussion about Creative Commons licensing as well as fighting to express themselves freely.
WalMart is bleeping out lyrics. They have always displayed censorship behaviour with magazine covers and CD artwork, now this butchering of lyrics and artist rights. And they have the clout to demand prior approval from art editors.
Don't buy from WalMart.
E-Music allows you to buy MP3s with no restrictions, so there is a market. Of course they only have independent artists, but that's the point. The only way to break the RIAA monopoly is the free market. If the RIAA and derived music services (including Apple, which also restricts you to one format) keep these kind of licenses, people will move to more open solutions.
I read a story of somebody who purchased an iPod and some songs and then wanted to move the songs to a MP3 player. That didn't work to his consternation. If digital music becomes mainstream and stories like this start to circulate, people will realize that license agreements and DRM are important.
Nothing forked about it, Jason.
I'm saying that an artist ought to be able to decide what of its rights are for sale -- very restrictive, or not restrictive at all, or something in between -- some artists might feel that a particular song is very special to them and they'd not like it touched, but others the world are allowed mess with. But much of the talk on the promethean view of file-sharing is that it's about empowering artists -- something I think is great provided, however that artists are the ones who decide what rights are for sale.
Where I find myself most itchy and where I find myself defaulting (albeit reluctantly) to the positions of the RIAA and that LBJ-apologist Jack Valenti, is that there's this belief among many file-sharing crusaders that artists not only should be able to allow their songs to be freely downloaded, freely sampled and freely messed with, but also that they are obligated to allow such access. File sharing may well increase sales, but some folks may not want it anyway... so let the market bargain for the line between artist control and consumer freedom... and help create a mechanism that allows for a robust, rights-negotiating system, rather than one that insists that because the RIAA is nutty that we must embrace its opposite.
MrFiveYearsAtBerkeley, would you provide a source for "file-sharing crusaders" who believe that "they are obligated to allow" songs to be "freely downloaded, freely sampled and freely messed with"? I know of no such people that compel anyone to do that.
I know of people who think it is ethical to allow at least non-commercial verbatim sharing in any medium so long as a license stating this is preserved. The folks at the Free Software Foundation argue in favor of this--all of the GNU project essays use a more liberal variant on these words, and RMS has lectured on this point stating plainly that all works should allow for this kind of distribution. I agree with his argument so I use a similar license on my works expressing opinion. When I distribute parts or whole episodes of my radio show ("Digital Citizen", which I air from WEFT 90.1 FM, my local community radio station), I distribute them under a slightly more liberal license (I also allow commercial verbatim redistribution in any medium). But I don't know of anyone who has expressed a belief that they are obligated to allow sharing and derivative works.
And as for the copyright holder (which, we must not forget, may not be the artist) having the power to distribute their work under any license they desire (including under multiple licenses to different licensees), that isn't going away anytime soon. So I don't see the point in talking about this as if this is under some kind of threat.
JB, Jason said this:
Please correct me if I’m wrong, but you seem to be saying that the ability of the music customer to share music “increases sales” while at the same time advocating the “right” of the musician to restrict the customers’ ability to engage in that action.
Which suggests, that there's no right to restrict a customer's behavior. If there's no "right" to restrict, and if you want to stick it on-line, you are essentially obliged to share your works completely if you put them on-line... or not at all. Maybe I'm misreading Jason's point, but I don't think so.
MrFiveYearsAtBerkeley, would you provide a source for “file-sharing crusaders” who believe that “they are obligated to allow” songs to be “freely downloaded, freely sampled and freely messed with”? I know of no such people that compel anyone to do that.
well, J.B. Nicholson-Owens it's seems your radio signal doesn't reach very far.
try reading what the self-entitlement crowd at slashdot thinks and you'll find an entire culture people who believe everything digital should be free.
if it wasn't so pathetic, it would be sad that so many people whose livelihood depends on IP are so opposed to it.
Someone upstream was saying that iTunes was the answer. But since their policy includes:
> play songs on up to three Macintosh computers or Windows PCs
I don't see that as so unrestrictive. Between my partner and I (including both work and home), we have six computers. So we'll need to keep track of which computers we can copy music to, and get errors when we try to move a song around? No bleeping way. That's not unrestrictive -- that's not "I own it so I can do what I want with it, as long as it's non-commercial use" -- not even close.
Sandy, I doubt if we are ever going to see commercial downloaded music in the “I own it so I can do what I want with it, as long as it’s non-commercial use” category.
What I like about iTunes is the DRM is reasonable (IMO), especially at this point in the game. Want to play your purchased music on more than three computers? I burn my AACs to a CD to take to work. Poof, no more DRM.
Yes, the DA to AD to DA conversion must reduce the quality of the music a bit when I rip them to my work PC. But the AAC files are better quality than most MP3s to begin with. And between the quality of speakers on my work computer and the low volume I am required to use - I don't notice any difference.
Bottom line. I'd like unrestricted use too, but Apple has come up with what I feel in the best game in town, so that's where I shop. My CD purchasing days are over.
J.B.,
"Jason--that’s not a “forked tongue”, that’s recognition of how things are right now. They aren’t even contradictory positions. I too happen to believe that sharing increases exposure which increases the odds of a sale. At the same time, I know that sharing doesn’t preclude getting people to agree to terms which will restrict them (legally speaking, not technologically speaking) far more than most people realize."
--That's an insightful observation which I believe might eventually lead to the root cause of the friction. At the end of the day, the issue always seems to end with control. Copyright law creates artificial scarcity of a resource (ideas) that cannot be controlled. Your point about the rights of the creators is certainly valid, but my counterpoint would be that those same creators have legislatively maneauvered in such a way as to restrict the rights of their customers. This backlash, once technology opened up the possibilities, was inevitable.
-- (Offtopic: At one time, I was stationed at Chanute Air Force Base outside of Rantoul and thoroughly enjoyed my time in your neck of the woods. And, FYI, I drank O'Malley's Wall. :) )
MrFYAB,
"Which suggests, that there’s no right to restrict a customer’s behavior. If there’s no “right” to restrict, and if you want to stick it on-line, you are essentially obliged to share your works completely if you put them on-line… or not at all. Maybe I’m misreading Jason’s point, but I don’t think so."
You didn't misread me, but I wasn't really making a point so much as pointing out the problem/dilemna. I do maintain that publishers of media have no right to restrict the behavior of their customers (I consider this a digital extension of the "First Sale" principle). I also maintain that the anti-circumvention provisions of the DMCA are unconstitutional as flagrant violations of the First Amendment. They stifle free-speech in an arena that has the potential to spark innovation.
I am supportive of (ala Fox News) "fair and balanced" IP laws, but I have no sympathy for an industry that feels violated by the customers that it has been violating for decades. And, as a solution, the last thing I would support is this media-industry-police-state that we're currently facing.
--Jason
Larry, the paragraph you excerpt includes "except as noted above" which explicitly grants personal, non-commercial rights. It reads to me as if those rights pertain to the rest of the paragraph you excerpted.
Jason makes perfect sense. Even though he may belive that file sharing increases sales, he thinks the artist should be able to dictate how it wishes for its work to be consumed.
Jason,
Fair enough. I just think trying to "settle the score" with the RIAA, so to speak, is mostly counterproductive. Speaking truth to power may be useful, speaking truth to capital -- if you will -- doesn't find a receptive audience.
Anyway, I just think the best world is one where (give the cheap cost of music production now, and that almost anyone has at their desktop the audio/recording power that only big studios had even a few years ago) artists can decided whether the economies of scale of big record labels make sense and that if folks want to avoid it, they'll have an IP regime that respects the sale of varying levels of rights -- and not one where the consumer has some carte blanche to take that which they wish from the artists (or their corporate taskmasters/patrons/owners/whatever) because of some previous perceived slight.
I do not believe anyone is obligated to do anything; to me, laws are sometimes-useful fictions. Ideally, people obey them or not because they see how they serve them, and otherwise they try to understand them or get them fixed (for some this means total elimination). I certainly don't believe an author is obligated to "allow" others to do anything with "their" work, but i also don't believe the work is simply "theirs" (property being another legal fiction).
Yesterday i heard a couple of people talking about how a movie could have been different. Technology says they could be having that conversation in front of a screen while they edit. For tens-hundreds+ of years our cultures have evolved with this kind of freedom in story, song, art, etc. and i often wonder how important it is to the healthy evolution of culture.
Today if you really want to, you can assemble the gear necessary to record live audio and video as you walk about your day. I would not obey any law which disallowed me from replaying these recordings for myself. In fact, i'm not sure what restrictions i would accept at all.
To the degree that property laws are not serving people, we shall change them.
MP3 file copying is also being restricted on the new iRiver digital music player. You can download WMA and MP3 tracks to the device, but you can't *upload* them from the device to your PC. A FAQ on their website (http://www.iriveramerica.com/support/iFP_FAQ.asp) says:
"Q. Why can’t I upload my MP3 / WMA files from my iFP-Player?
A. Due to copyright protection laws that apply towards our technology, media files (MP3 / WMA files) cannot be uploaded from an iFP-Player to a PC. All other non-media files (documents, images, etc.) can be uploaded to a PC from the iFP-Player."
There are only so many players in the consumer electronics mass-market game, so to the extent they begin enforcing DRM at the device level, where you get your music will mean less than what you store it on.
Regarding the restrictions on the new iFP-Player, it should be easy enough to store WMA/MP3 files with a different file extension and then upload them, but why bother? It seems like an awfully restrictive setup when they have to compete with the iPod and others that have no such restriction. They are at such a huge disadvantage... Why would they do such a thing?
You couldn't play those non-WMA/MP3 files, though. To both play _and_ transport a music track, you'd need to copy two files to the iRiver (e.g. mymusic.wma for listening, mymusic.xyz for transporting).
I agree that the iRiver may have a competitive disadvantage, but only when consumers begin to discover the DRM restrictions. I bought the device based a glowing magazine review which, however, never mentioned the DRM issue. From now on, it'll be on my personal checklist of "things to avoid in a consumer electronic media device."
As for iPod, that's great if it doesn't have DRM restrictions. But given the legal landscape, users might want to read the fine print before downloading future firmware "upgrades"...
Prof.,
WalMart is bad for business. Starting Jan. 1, Levis will not be in business due to WalMart special (cheap) Levis jeans, etc. How can you contribute to WalMart?
Wait. I get it. You must be a liberal. If you support Dean for his anti-war (but are oblivous to his Iraq stand during Clinton years - check WashPost editorial sometime ago) and his pro-Jesus view this weekend (but are oblivous to his CNN interview a while ago with Judy W. where he poked fun at religious people), then you are on to something. Anger is not the campaign theme. Excellence is. Critical thinking is.
(PS: Here is a bonus for you. If Dean wins, sometimes miracles happen, then is VP will be Edwards. This is as Edwards is soft on criticism of Dean, has no job after Nov. 04, and his message is positive, not Anger White Man like Dean's.)
Ali Karim Bey
Political Analyst and Investigator of Liberal-Hypocrites
Dear Friends,
I really enjoy the intellectual discussions on these threads. They're often about 10,000 feet above my head, but I always enjoy the spirit and intelligence of the discourse.
I must ask a simple technical question. Although Wal-Mart's policy seems to exclude lots of types of usage of the musical content they're selling, are their exclusions enforcable by law?
In other words, if Wal-Mart says I can't sync the music to my own personal home movies, but the law says that I can, is Wal-Mart's license legally enforcable? Doesn't the law trump a licensing agreement?
Or do I need to learn more about current copyright laws? Just wondering. ---Todd Ruel
"As much as I think digital music swapping is cool and probably increases sales, if some band wants to offer its music ONLY on eight-track tape and only for use on Tuesdays, it ought to be able to do that and that folks should buy (or not buy) the music subject to those conditions." MrFiveYearsAtBereley
I'm jumping in here a little late I know. But here goes. MrFiveYearsAtBereley needs to address the concept of "fair use." Should the MPAA or the TV networks (in the 80's) have been able to license their content such that consumers could not have used VCRs to record for personal use? If I understand MFYAB, he would allow for licenses that, if available in the 80's would have stopped the consumer adoption of VCRs dead in its tracks. If MFYAB has a problem with "fair use" then, well, okay. But then it seems to me that it is incumbant on MFYAB to meet the rather good and long-standing arguments for it. Allow me to extrapolate from MFYAB's own example (quoted above): Should a book publisher be able to hold me to a license that only allowed me to read the book that I purchased on Tuesdays? MFYAB's position leads to absurdities.
David, a fine and good point, I didn't mean to be definitive here, but I'd ask you, if that's the license for sale -- absurd as it is -- why would anyone buy it? (Ignore, for the moment, the obvious absurdities of enforcement). The point is no one would buy IP with that license attached to it and the market would quickly adjust.
While fair use can exist (and indeed ought to), even in my universe of a sliding scale of rights, but I don't think it necessarily has to. And I don't think there's anything wrong with that. In the post-Eldred universe, Lessig and others suggest the low dollar renewal of rights, which I think is a good system (indeed, for my own money, I think its better than everything falling into the public domain automatically, but that's a different story).
In any event I just think that if this alternate and robust view of CC licenses is to work out, its incumbent on its champions to acknowledge (and, indeed, embrace) that some folks may want to put absurd restrictions on their licenses -- and take the market risk of those restrictions either working or not -- and I think anything short of acknowledge and accepting bizarre restrictions only feeds the other side which says that folks who would rethink IP rights are exactly who RIAA suggests that they are.
Errr... that previous post was posted by MrFiveYearsAtBerkeley : )
"While fair use can exist (and indeed ought to), even in my universe of a sliding scale of rights, but I don’t think it necessarily has to.
MFYAB,
First, in reference to your comments on the existence of "fair use," I'm not sure how to reconcile your assertion that it "ought to" with your denial that it "has to." Second, I question your faith in the capacity of the market to "adjust" when that market is populated by so few players. How competitive truly are the several major record labels in light of their demonstrated propensity to align their strategies under the auspices of the RIAA?
"In any event I just think that if this alternate and robust view of CC licenses is to work out, its incumbent on its champions to acknowledge (and, indeed, embrace) that some folks may want to put absurd restrictions on their licenses...."
I agree wholeheartedly with the principle that we must be willing to accept restrictions that we find absurd, but only up to a point. In that "post-Eldred universe" to which you refer I for one will live with what I consider to be the absurd restrictions on my use of old Mickey; yet I would maintain that I have the right to watch the Nemo DVD I purchased in the privacy of my own home on Tuesdays, whether or not Disney proscribes my doing so.
If I understand your reasoning, you claim, enthymematically, that if CC licensing schemes are to succeed then Fair Use must be sacrificed. I would imagine that if CC advocates thought that their efforts would succeed only at the cost of Fair Use, they wouldn't bother. I'm sure, however, that the RIAA would only applaud such a Faustian bargain: We'll give you CC, if you'll but cede Fair Use! Or have I misunderstood you?
Life doesn't get any better than a cold Coca Cola and a trip to Wal-Mart Heaven.
i pity on ur 88cents buddy.....nywz dont worry everything happens in lyf for some gud ...see you gave ur valuable info 2 us...thnx....
Wow it's stunning.......
beach wedding dresses
what a nice blog to read hahaha
wholesale jewelry