Frank Catalano sent me a link to this essay he wrote about how Apple may come out on top in part because they offer a music sale and download, not a music subscription.

But this underlies a more fundamental problem. The media companies (record, film, video, and print) don't view media in the same way as consumers or individuals.

The goal of media companies in a digital age is to license media, not sell it. This guarantees them perpetual upgrade money when technologies become obsolete.

When you switched from analog VHS tapes to digital DVDs, you didn't regret quite as much the cost of upgrading because you got an eternally unchanging (more or less) copy. But your DVD is perfect. When the next format arrives, will you be able to make a digital copy of the DVD you own into the new format? No. The companies already prevent this through copy protection which in turn is protected by one of the most unconstitutional laws since the Sedition Act: The Digital Millenium Copyright Act (DMCA).

Is Apple, thus, selling music? No. It's licensing it, but they say you own it. I asked Apple's VP Phil Schiller: if I own iTunes music that implies that I can then sell my songs to other people, right, since they manage the rights and I can deauthorize those songs on my machines? Hmm, he said, never thought of that.

I asked if it was ownership if you couldn't sell it. Schiller said, "I do think of it as ownership, and it really does fit the definition of legal ownership." There are always "certain boundaries on your rights, just as on everything I own." For instance, "I can own a car but that doesn?t give me the right to speed 100 mph in it."

Also, if you lose your downloaded files, even though Apple has external licensing systems that can tell where the files are played, they will not restore your missing files. They're gone. You have to repurchase them. That's not ownership; that's borrowing.

Schiller's remarks are revealing in that he's equating uses unintended by a maker as potentially the same as criminal violations of the law. We can't drive 100 mph because it's not in the public interest, among other factors. If you drive 100 mph, you can have your license, your freedom, your money, and your car taken away.

It's more like putting a governor on every car so that you can only drive the maximum speed limit in each zoned area. If you're on a highway that reads 60 mph, you can drive 60 mph maximum. (Even better, it's like some cars are set to 30 mph and some to 60 mph, regardless of zone.) You might try disabling the governor, but of course the auto companies would have a Digital Millenium Car Act that would put you in jail, just as if you had rolled back a speedometer.

Perhaps its wise that I go the speed limit, but there are always circumstances that are outside the rigid parameters that those that attempt to constrain all acts, public and private, can envision. If I own 100 square miles of salt flats, I can drive as goddamn fast as I want. But I can't with a car with that putative governor, nor can I remove it.

There must be a differentiation between the notion of illegal acts that harm society or oneself, and the expression of fair use rights that are well within statutory law and should not be brushed out of existence with the same Jack Valenti branded, RIAA themed paint roller that's trying to squash piracy.

Piracy is the strawman; the right to transfer media under fair use law is the crux of the current debate.

Quote: "Also, if you lose your downloaded files, even though Apple has external licensing systems that can tell where the files are played, they will not restore your missing files. They're gone. You have to repurchase them. That's not ownership; that's borrowing."

How is that borrowing? That's like saying that you are borrowing a car if you crack it up and the auto dealership doesn't give you a replacement. No sir. That's ownership. You are responsible for the goods you purchase. I do, however, feel there's a unique opportunity to have the music replaced at a discounted price should Apple have a record of your purchase. I think that would be appropriate. It couldn't be free because there are costs involved in the process.

I think the model Apple is using is ideal. The music industry is happy because they're licencing the music to Apple, therefore receiving ongoing revenue. Apple then sells *copies* of the licenced music to consumers, which also generates revenue for the music industry. They're getting paid multiple times for the same product. Everybody wins.

Ted, you're right: I'm mixing my arguments here.

I should say, if Apple says you own the files, then they should let you sell them. If they own the files and are selling you a license, why can't you re-download lost ones?

I think that even with the Apple iTunes Music Store's noted imperfections (license vs. sell), Apple's entry continues to move the bar more toward "sell" than the other online music services with its unlimited burning and portability.

There's still further to go, but the services are headed in the right direction.

Look at Audible.com. I can purchase a book and if I want I can download it as manu times as I want. I onw a copy fo my use. Allple should take that aproach...

If you buy a CD in a store, they don't give you another if you lose it. Why expect Apple to do the same? They allow you to make unlimited backup copies on CD or DVD. Use it. Backup to another drive, even. Now, look at re-downloads from Apple's stand point: you could sign in on someone else's computer, pretend you've lost all your music, and redownload it on their computer. What does Apple do? It's simply not reasonable, if they want to keep the record co's on board, they have to do this. Just like when iTunes sharing became a vicarious path for piracy, they had to close it down, despite legitimate uses.

If you buy a CD in a store, they don't give you another if you lose it. Why expect Apple to do the same? They allow you to make unlimited backup copies on CD or DVD. Use it.

You have 100 percent missed the point. For sophisticated folks who make backups and have multiple machines -- a minority of people since the Backup software Apple offers only comes with a .Mac subscription and is extra stinky yucko -- you're right.

The point is that if I own a CD today, I own it. I can sell it. I can rip it. I can make copies of it. I can do all kinds of fair use things with it. I own it. If I download music from Apple, I license it, and they restrict my rights significantly.

Because Apple doesn't make it easy for people to backup -- they should have bundled Retrospect eternally -- and because they don't let you resell the music (and give up your own rights to it) they should be supplementing that position by giving you a virtual hard drive containing your downloads with the same machine restrictions.

pretend you've lost all your music, and redownload it on their computer. What does Apple do? It's simply not reasonable, if they want to keep the record co's on board, they have to do this.

You're not paying attention here: Apple specifically restricts your library. If you redownloaded the same files, you would only be able to play them on the same machines you'd already authorized which had their hard drive(s) go bad. You could force deauthorize dead machines and reauthorize, but Apple is the gatekeeper here, so there's no loss in them allowing a new download of the same restricted file to your same account.

If I own iTunes music that implies that I can then sell my songs to other people...since...I can deauthorize those songs on my machines

Not so. You can deauthorize your Mac, but the songs themselves remain forever tied to your Apple ID, which is encoded into them when you buy. Thus, the only way you could "legally" sell your iTunes music would be by burning it to an audio CD and then deleting the originals from your hard drive. Doubt we'll see much of that...

The right to transfer media under fair use law is the crux of the current debate

Absolutely. For my 99�, the iTunes Music Store walks the fair use tightrope very well. I suspect there are technical or logistical reasons that make it impossible or impractical for Apple to allow users who have "lost" their music to download it again. (Why, perhaps bandwidth costs have something to do with it. ;-) But to their credit, they make it clear that users should back up their purchases. It isn't that hard, after all.