October 31, 2003
Online Music Stores - Treat, or Trick?

I've been looking for a legal way to get lots of music from the online world. After reviewing my options, I'm beginning to think that buying CDs is probably a more straightforward way to obtain music at the right price. At least when I buy a CD, I understand, or I think I understand my rights to use it. The article below is just a draft - I haven't yet thrown this by a lawyer. But, in my 'plain english reading' of the license, I'm pretty sure that Napster isn't going to be on my PC at this time.

With the release new Napster, I was considering installing it. My criteria is this: Can I legally use the music: at home, at work, in the car or CD portable player, and in CD collections I make myself? Also, will my Nomad music player play it? Nomad plays MP3 and Windows Media files, so iTunes is out.
So there are my critera. Pretty reasonable. Why would I buy music I can't use where I want to use it?

Then I read the license info for Napster. And when I looked up from this keyboard, an hour-and-a-half had passed. Read on:

Because the Software includes security components, special rules and policies apply... To this end, the Software includes an auto-individualization feature that automatically collects unique system identification information about your computer and may be remotely activated in order to update security components used by the Windows Media Player.

Ok. I understand that. (Note: I worked on the Windows Media Team a while back). This basically means that the music can be keyed to the particular PC. But it's also stating that something in my PC can be remotely activated to update a security component. I've spent a huge amount of time making sure everything in my PC is NOT remotely activated - changing how .vbs files are handled, running a firewall, etc so I don't have any accidental worms visiting. But let's assume that only legal, signed Microsoft components will be touched. Read on...

These updates, modifications and the like may occur on a periodic or as needed basis without notice to you.

Well, I'd kinda like to know about it. That way, if something stops working, like my media player, or a digital MP3 player connection, at least I know where to start.

In addition, you understand that the Software is capable of monitoring itself for security-related and tamper-detection purposes and communicating information about security incidents. Your copy of the Software and your access to certain applications that communicate with it are subject to restriction and/or revocation (such as being shut down) for security purposes or according to consistently applied Content-protection policies. You understand and agree that this would likely result in Content that was previously available for use being unavailable thereafter.

This means - hands off. You tamper, likely we'll A) Find out, B) We'll check you out, or perhaps send the local sherrif to do so, and C) We'll turn your music off. Well, again, I'm being legal, so this shouldn't matter to me.

Next is privacy. Basically, they take your info, you give it. But I don't like this:
We may also allow you to choose whether to receive mailings from record labels and other promotional partners that we think will be of interest to you (see "With Whom We Share Your Information" below - which they state they may give you access to opt out. How about "will"? We WILL give you an ability to opt out. Later on in the Privacy policy, they say you'll be able to opt out of giving music labels your information. BUT, their language is set so that they can change that. The beginning of the page states that they can change it at any time, and will "endeavor to post the chagnes before they become effective."

Relating to counting and keeping track of the songs you buy, We do not share your personally identifying usage data with any third parties. Thanks. Then why is the next line: We may use your personally identifying usage data for a variety of service-related purposes.

Ah: Further, when you access the service through a Partner and download the Napster Client, we will add certain of your registration information (such as your member name and, if applicable, the Partner or promotion through which you registered) to the registry settings on your computer's hard drive, so that we can recognize which of our Partners or other sign-in pages to send to you when you log on to the service. So, they are keeping my user name so they can pass me to a partner, like "Napster on INSERT PORTAL NAME HERE." Well, that's not too bad - designed to make it easy for me to use with any service provider.

Let's examine the terms relating to using Napster:
To access the Service, you will need to install or activate Napster's proprietary software application; from time to time, you may also be required to install other software made available through the Service (collectively this software is called the "Client"). You may also need to install certain third-party software.
So, I'm not really just installing Napster. I'm installing the ability for Napster to install other stuff for me.

I'm told I'm only able to use the music in the way they say. For example if I burn tracks to a CD (up to 5 generous times), I " agree not to copy, distribute, or transfer the track from that CD to any other media or device." If your computer goes Kaplooy, "Napster will maintain a record of your Purchased Tracks. You may use the "Sync/Restore" function to obtain another copy of those Purchased Tracks for up to two additional computers that you own..."

Well, that's a bit of a relief. If I'm legally buying this stuff, I want to be able to replace it. But, if Napster loses rights to any of these "Tracks," so do I. If I'm Sync/Restoring, I can't get tracks back that Napster no longer has rights to. So, basically they're mine until they're not.

By the way - if you do tamper with the software, you're causing Napster "irreparable injury" which is a legal term meaning they can sue you for everything you've got (again, I'm not a lawyer.)

Compare this, to, for example, BuyMusic.com. I went looking for a track, and found that there were some restrictions to how I could use each song, by track. Different tracks had different rules. For example, Willie Dixon's "Backdoor Man" had the following usage rules:I could save the track on 3 pcs, transter it to 5 mp3 players (or one player 5 times), and burn it 5 times. This is interesting, but could get annoying having to watch for the different rules per track.

I tried to find the rules for iTunes by going through the license agreement, but they don't list this stuff. I couldn't find it on Apple's site either. But since I don't have or want an iPod, it's kind of a moot point.

So, I'm back to buying music on CD, in the store, as the only way I know to get tracks I can use at home, at work, in the car or CD portable player, and in CD collections I make myself. Gee. How 1984.

Howard Greenstein still has 12GB on his 20GB Nomad music player available, and is waiting for the music industry to let him fill it up at cheaper than .99 a track.

Posted by Howard at 09:54 PM