iTunes and Webcasting

Ok, I still don’t have all the details on this matter, but I’m trying to follow the conversation.  Go here, here, here, here, and definitely here.  Prelim thoughts:

SpyMac and ShareiTunes seem to index files.   I thought they were just pointing to IP addresses or something (I didn’t analyze their websites carefully enough at first). That might make things more tricky for them legally – I still don’t think they’d have to pay webcast fees, but they might be in a position of contributory liabilty.

The more I see, the more this looks like interactive webcasting.  You can search for and play particular songs.  Again, that means that these people should be negotiating licenses with the RIAA.  If these people are not licensed (presumably so), and SpyMac gets a takedown notice (they seem like information localtion tools under DMCA 512), then SpyMac would be a position similar to Napster, I suppose.

I don’t think Apple is at risk.  They don’t seem to have any control over how this software is used – they’re not doing any indexing, they’re not providing the “site and facilities.”

Things I need to find out: is this use of iTunes dissimilar from the initial growth of webcasting?  That is, is this just a lot of hype, an unexceptional extension of amateur webcasting going on already? Or, is this really something new? (can we quantify that?)  Is iTunes making it far easier to stream music?  Similarly, is iLeech far easier to use than Streamripper or Total Recorder?  Also, is iLeech circumventing a copy control measure?  (Doesn’t seem like it, because only unencrypted files are being shared over iTunes. Then again, the program is set up specifically to only allow streaming.  Don’t forget, we’ve been down similar roads with Realnetworks v. Streambox, and also with StreamRipper and Live 365.)

The Substantive Due Process Jamboree

That’s what I’m in the middle of right now, because my ConLaw final is tomorrow.  So, I’m a little busy. Two quick thoughts for the day:

1.  I’d love to know if anyone can corroborate this analysis.  I’m not sure if he’s correct about whether it’s webcasting (I’m not sure if the potential size of audience actually matters in webcasting) and  whether it’s an interactive/non-interactive service (I don’t know enough about iTunes).  What’s more, even if this isn’t webcasting, then that doesn’t mean the iTunes users are in the clear.  It might mean that, rather than paying statutory licenses, they’d have to negotiate directly with the RIAA.

2.  As Frank suggests, read this and then this.  The former piece explains how DRM is not only problematic in what it’s generally used to prohibit, but in how inflexibly it prohibits.  Going back to what I was saying yesterday, this brings up an important point about fair use.  You can’t codify all fair uses, because fair use is not rigidly definable.  It’s an evolving concept, generated by the flexibility Weinberger’s discussing.  Certainly, it might be worth defining some fair uses to help avoid recurring legal quarrels.  But, if we try to codify too many, we risk treating those fair uses as an upper limit.