Helping make Prof. Lessig’s case for him

So, Steve Jobs introduced iCloud to the world yesterday.

Michael Speck from Music Industry Piracy Investigations (the people who bring down pirates like Kazaa for the record industry) declared:

Apple was “no better than the old p2p pirates”.

Now, at one level, Apple is not doing that much that hasn’t already been done before: Apple own webpage compares its service to those already on offer from Amazon and Google. Here’s another 17 Apps Mr Jobs made redundant.

Presumably, what you “buy” from Apple through the iTunes store is covered by a licence. The thing that Mr Speck is concerned about is the iTunes Match service: if you let Apple scan your hard drive it will store on the iCloud server for you copies of – according to Mr Speck – all the music you have there; you paid music and music you, er, ripped yourself including pirated music files.  Tidbits’ summary of iTunes Match:

iTunes Match — What about the music you purchased elsewhere or ripped from CD yourself? For a $24.99 yearly fee, iTunes Match makes those songs available, too. iTunes uploads a list of songs in your library (much as it does now for the iTunes Genius results) and matches them (probably using music fingerprinting) against Apple’s collection of 18 million tracks. If you choose to download a track to a device where it doesn’t appear, Apple provides a version at iTunes Plus quality (256 Kbps and free of DRM), even if your original copy was ripped at a lower quality.

Hmm, so if an Australian user chooses the music files to be “matched”, that puts Apple in the territory of iiNet (unless of course Apple’s servers are “in” Australia too).

But wait you say, isn’t there a fair dealing defence? See if you can fit what is being proposed into this.

From what some of the other commentators say, however, it looks like Apple may have cut a deal with the record companies so that some percentage of the annual iTunes Match fee goes to the record companies – see the comments of Kim Weatherall and Colin Jacobs here.

If that were part of the deal with the record companies, then problem solved, but Mr Speck’s interpretation is that it just a unilateral position taken by Apple without the consent of the copyright owners.

Then, for those of us in Australia, there is another problem: when it launches, iTunes Match will be available only in the USA. It will become available in other parts of the world only when licences are negotiated with the copyright owners. Wonder how long it will take before (a) Apple gets around to negotiating with copyright owners for Australia and (b) the chances the copyright owners for Australia will agree to any of this? Remember how long it took for any copyright material to show up in the iBookstore?

On the topic of territorial copyright:

When Zengobi announced Curio Core it was priced (to US customers) at US$39.99. It’s currently available in the Apple Australia Mac App store for AU$47.99, even though the Australian $ currently buys (approx) US$1.06 (which translates into just under AU$38. You can have similar fun with lots of other items in the App stores. Choice magazine provides even more egregious examples for a host of brands.

What Prof Lessig’s case is.