> Apple countered by arguing that “no reasonable consumer would believe” that content purchased through iTunes would be available on the platform indefinitely
Remember this sentence to change your mind for the next time you see some movie to buy online.
I always assumed they would be available as long as Apple or iTunes doesn't go under. Guess i'm not a reasonable consumer but luckily I haven't spent much money on them.
Apple and friends will do their best to avoid a ruling and laws which could establish this interpretation because it would end their practice to terminate accounts with the reason "Computer says no".
When contracting with consumers these companies should be forced to be liable and accountable for their algorithmic decisions and arbitrary policy enforcement.
That wouldn't be unreasonable at all. "They clicked the accept EULA button" is not a valid excuse.
Pretending that consumers are able to negotiate a fair contract with Apple is denying reality.
Especially because every so often we as consumers get an email saying “we made some updates to the EULA / ToS, here’s the full 50 pages document without any markup as to what actually changed, you are now bound by these new terms that aren’t exactly the ones you initially agreed to”
I've spent a lot of money on iTunes content (Nearing 1,000 purchased movies on AppleTV), and my assumption was the same. As long as Apple/iTunes doesn't go under, and given I don't do anything to violate Apple's terms, I will have access to this content.
I understand I can lose access, I'm not paying for the content in the idea that I own it forever even if Apple goes under or I get terminated, but I have perpetual access to it given the circumstances don't change, and I pay for the convenience of this.
If I had expected to own it forever, I'd probably have bought DVD's, not digital.
> If I had expected to own it forever, I'd probably have bought DVD's, not digital.
This is the opposite of what it should be. DVDs degrade over time, and can last for as little as 10 years. Digital should be mean transportable and convertible indefinitely.
Sure but who's gonna pay to keep those servers up in perpetuity?
I would never buy digital thinking I'll have access indefinitely. At least with DVD's I can rip them and burn them on new DVD's if I wanted them to be "forever"
The company can use part of your purchase price to buy a long term debt instrument (e.g. a 30-year T-bond) and use the yield to keep the server running.
Or, more realistically and prosaically, they can and should debit the net present liability of keeping the server running in perpetuity from their corporate accounts at the time of purchase. Accountancy knows how to value such things and finance delights in monetizing them.
Make DRM free versions available for download? Music has had to go that route so that people can 'own' their downloads.
Maybe a self-hosted auth server of some kind is possible?
Adobe recently stopped letting you install CS3 even if you have the CDs because they took the auth server down. Do you think there was a reasonable expectation that when someone paid thousands of dollars for those discs, that they 'owned' them and had the right to install them repeatedly on their own computers?
>You can no longer reinstall Creative Suite 2, 3 or 4 even if you have the original installation disks. The aging activation servers for those apps had to be retired.
Looks like they just added CS4 to the list...which is still usable software (and in fact offers features that are currently unavailable!)
It's mostly dependent on heat, humidity, and light.
And then of course handling.
And the actual player and how much it might contact the disc (eg inserting in certain slot drives repeatedly can brush dust/dirt on the surface).
> Guess i'm not a reasonable consumer but luckily I haven't spent much money on them.
I used to have an account on which I spent at least $400. After an attempt to change the email address associated to the account I got locked out. It seems the same email address was used to create a different account in the past and the move just destroyed my access and any possible recourse.
So I switched to Android and stayed on Android for the last 7 years. No more iPhones for me, just remembering how my content got stolen makes me turn away.
I used to be a big fan of iPhones when they came out, even had a first gen iPhone a couple of months after launch. But after losing access to my content it all turned into the feeling that I am being abused.
Never had the feeling of being abused but I didn't like having to buy into their closed ecosystem so I've been an Android user and programmer ever since my iPhone 3G.
And people look at me with gaze when I tell them that I don’t want iCloud. I would much rather pay for a service I can use on any platform so that I can switch out of Apple whenever I want to. Apple fanboys will grill me for this, but at least I will be saving my future self from headaches.
> Remember this sentence to change your mind for the next time you see some movie to buy online.
If you use iTunes, and "add to library," like I do, you'll see how often albums get removed or replaced or remixed. It's unnecessary and unnerving. The labels are constantly faffing about with albums. Every couple of months, I'll go to play an album, and find that it only has, say, 2 songs in it. Sometimes I can go back and re-add it to my library, sometimes, there's a new "remastered" copy, and sometimes those songs are just no longer available in iTunes. I pay for the subscription, and don't buy music. And I'm glad. I don't know why these changes wouldn't happen to me even if I had paid for it, but maybe that would be exempted? If someone can tell me that this doesn't happen if I buy the album, I would snatch up some of my favorites right away.
I have "purchased" movies from Amazon, movies for which Amazon later lost streaming rights, and which are no longer in their catalogue - and so my "purchase" was temporary. I am sure their EULA expressly permits this but it's irrelevant now as I have learned my lesson. I now longer "purchase" digital products unless I can download them after purchase. When this first occurred, I was angry. Now, I just consider myself educated to avoid Amazon at all cost.
I do not think consumers know this at all and very much do agree that what they buy will be available to them during their lifetime at least. When I told friends that this can (and does) happen to books on Kindle that they paid for, they were very surprised. I am a reasonable consumer but yes, of course I assume that if it does not say 'rent this movie or book for a day' but instead uses the word 'buy' (often next to the button rent, so they they are making a distinction!), it will not dissapear. If it does disappear, I should get a refund, no matter the reason for it disappearing.
If it was an object in your house, and they made it disappear and left you some money, that would be theft.
Thoughts?
I'm not convinced 'making digital goods disappear' is good. I know WHY it's done and totally understand the justification, but I continue to dislike and distrust the practice.
Should we normalize the idea that everything we own is fungible, at the discretion of a third party, for its exchange value? Under what conditions do they get to swap out our property for replacements or money?
Seems crazy to me. Sure, all their content won't always be available to purchase. But once you've purchased something, how can that not always stay in your library? It is just a long term rental, not a purchase, if it can disappear and that isn't obvious to anybody without looking into it (and how should you know to look into it in the first place?)
Amazon argues the same exact thing if you buy a movie digitally from them. It's only available to you for as long as they host it on their servers. This is why I pirate shit that I can't find on Netflix or Prime Video. Buying digital content is merely "long term rental" and really needs to be better advertised as that.
I stopped seeing any value in purchasing/renting rights to movies and shows from the streaming giants. Want to watch The Office, sorry removed, no longer on Netflix. Oh, you are in a country that has a funny name, content not available in your region. Oh, you are trying to access your Hulu subscription from a Linux device? Max video res capped at 480p. It is such anti-consumer moves that makes me not feel bad for pirating.
IMO, the most maximum returns on home media consumption is gained by acquiring and archiving your own collection of media. I don't have to ask anyone for a license to watch my favorite movie from 1999 when I have the copy on my plex.
I wonder if we will ever see a model similar to Qobuz/Bandcamp for movies and TV shows. These services allow downloading your purchases as DRM-free flac files.
Apple got the RIAA to go along with it, they definitely could get the movie studios to if they wanted (the pirates already broke Netflix, Amazon, and Disney's encryption, it's not helping anyway).
I think the bigger problem now is that people don't buy enough movies for anyone to want to chase this down, and if you want to own a movie, 99% of the time I can get the Blu-Ray+digital version for the same price of the digital one, and then the license syncs to like five different video services. And if they all ban me, then I still have the Blu-Ray.
The MPAA vs RIAA is sort of an apples vs oranges comparison though. Audio is much easier to compress, and MP3 made it very easy to make files small enough to download via dial-up modems. Video had years to go before quality was good enough at small enough sizes to make them a viable thing on the internet. Because of that, the MPAA got to watch/learn from mistakes that RIAA made in trying to protect its kingdom. Rather than fight the digital inevitablity like RIAA did, MPAA allowed the digital with DRM. This allowed for the "honest" public to have legal viable methods of watching the content. The useless tact RIAA fought caused its own demise in the fight making an entire generation of kids think that music should be free because that's all they knew. Their allowing of DRM free FLAC files was a white flag. MPAA is in a much stronger position to allow that to happen.
Also I don't think there ever were physical audio formats with DRM? CD came out way before piracy was anyone's concern, and then it was too late to change anything.
On the other hand, all digital video formats have always had the technical capability for DRM, starting with DVD.
> Also I don't think there ever were physical audio formats with DRM?
MiniDiscs had "copy protection"[0] and this format was supported by major record labels[1]. They were first released in 1992.
> all digital video formats have always had the technical capability for DRM, starting with DVD.
By starting with DVD, you're skipping the DRM-free formats of Betamax, VHS, and LaserDisc then? Unless by "had the technical capability for" you mean "could be later extended to add", in which case there was Macrovision[2] for VHS, but also Extended Copy Protection[3] for CDs, also known as "the Sony rootkit".
> MiniDiscs had "copy protection"[0] and this format was supported by major record labels[1].
From what I can tell, pre-recorded MiniDiscs were never popular. People bought blank ones and recorded their own pirated mp3s on there.
But, yes, that makes me technically wrong with my first comment because it is a physical audio format that has the technical capability for DRM.
> By starting with DVD, you're skipping the DRM-free formats of Betamax, VHS, and LaserDisc then?
They're all analog and so you can't make an exact copy. At least not without obscenely expensive studio-grade equipment. Yes, that didn't stop people from making copies of VHS tapes, and yes, you could tell how many times it was copied by the picture quality.
You couldn't copy a Laser Disc though, so the only way to obtain one was either physcially steal it or you know, pay for it. VHS copies could be made, and were, of the Laser Disc. This is what scared the studios of DVD since the quality was so much better than VHS dubs. Macrovision was a joke to get around. Almost as easy as DeCSS. Macrovision bypass just took some extra video gear (something with a TBC), so it was slightly harder than the free DeCSS library. Betamax didn't last long enough for a copied gray market to come along in my area, so I don't have first hand experience with difficulties of beta dubs.
Conversely, I think a lot of people buy digital movies and never watch them because they want to own them. We all probably have friends who buy games they never play off of steam.
>> Apple countered by arguing that “no reasonable consumer would believe” that content purchased through iTunes would be available on the platform indefinitely.
I guess I will soon start a site about the amount of crap and hypocrisy modern Apple are saying. I dont know exactly what happened but post Steve Jobs Apple are getting ridiculous with their defence.
>> Apple countered by arguing that “no reasonable consumer would believe” that content purchased through iTunes would be available on the platform indefinitely
>Remember this sentence to change your mind for the next time you see some movie to buy online.
I read this as "no reasonable consumer would trust us".
That's the "Tucker Carlson defense".[1] "The Court concludes that the statements are rhetorical hyperbole and opinion commentary intended to frame a political debate, and, as such, are not actionable as defamation."
That worked in a defamation case, but the First Amendment defense probably won't work in a false advertising case.
I do. This is the exact reason why I've never bought anything digitally. Paying real money just to have some bytes streamed to you just doesn't feel right. And, I mean, you can't even resell or lend the thing.
University libraries all over the world would disagree, their archivists make very sure that digital journals are still available to their audience even if the subscription has expired. Access to digital content is a solved problem, even though Apple would have you believe otherwise.
How does this work? Is it normal for university libraries to keep a huge secret backup collection of PDFs? What happens if the university chooses to discontinue its subscription, as opposed to the publisher going out of business?
Contracts stipulate that material that has been paid for remains available even after the subscription is cancelled, that's usual for publishers. There's also agreements that material is transferred to archive sites if a publisher goes out of business and finds no buyer.
I wouldn't know about ToU violations, universities routinely get banned from arXiv for weeks because CS departments hand out assignments to write a webcrawler - no clue what kind of grovelling is requited there, but it must be well ritualized now.
You’re right that’s honestly a shitty way for Apple to make a counter argument. I suspect that a large number of Apple customers would see a purchase of a movie on iTunes as equivalent to buying a BluRay or DVD (the price would certainly indicate it), and now Apple is calling them unreasonable.
Apples legal team also seems forget that their customers expect them to behave better than the industry in general. No reasonable person would expect Apple to deny a loyal customer access to previous purchases.
So I don’t think that’s necessarily a great source to cite.
EDIT: In either case, these are lawsuits. There’s a few things that have to occur in the Powell (and Apple) case:
1. Is it reasonable to believe the people making said statements or taking actions believe they are correct / the truth
2. Was there malicious intent (predicated on point 1). Those suing have to prove the statements are both (a) convincing to a 3rd party and (b) show the defendant was trying to take action contrary to their beliefs
Because of the setup, it makes sense to basically say “prove a reasonable person believes the claims and prove the defended intended to cause harm, using evidence contrary to their beliefs”
That’s equivalent to saying “prove it.” This is standard in a motion to dismiss, which is step one in the legal battle.
This is a bit of a tangent from the actual article we're nominally discussing, of course, but...
> Further, the claims in that article were odd and don’t seem to match the filing Sydney Powell actually made
So, the bit of the article I can read says "Attorneys for Sidney Powell are asking a federal judge to dismiss a defamation lawsuit filed against her, claiming that “no reasonable person” thought the pro-Trump lawyer’s statements about the 2020 election results were factual."
This is directly referring to a claim in the document Powell's lawyers filed. If you scroll through to page 32 of the PDF you linked, you'll find this: "Such characterizations of the allegedly defamatory statements further support Defendants’ position that reasonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process."
It's literally arguing that "no reasonable person" would ever believe that anything anyone says about an upcoming court case is meant as a fact. It's an argument that would mean it's absolutely impossible to defame someone who's in any way related to a person you're suing, no matter how meritless that lawsuit might be. (Particularly, it argues, if your lawsuit is related to politics.)
What Sidney Powell is trying to do in the proceedings is to argue that the allegedly defamatory statements are part of legal proceedings. Legal pleadings are by definition protected speech and cannot be defamatory.
The problem she faces is that, while the lawsuits themselves are protected, she held several press conferences and made the same speech in other venues where it is not so protected. Furthermore, by making essentially the same speech in legal pleadings, portraying the speech as opinion or hyperbole and not factual statements (the usual defense in a defamation lawsuit) would mean admitting to committing sanctionable offenses in filing those pleadings. But they're trying to still play that defense as well, which leads to the awkward conclusion "it's so outlandlishly false that no one would believe it to be fact, merely a fact we're arguing is true in a court case," which kind of makes it more likely they get slapped both with the sanctions for making false statements before the court and being the rare defendant to lose a defamation suit.
> This is the exact same line Sidney Powell is using in her defense against Dominion: "'No Reasonable Person' Thought Her Election Fraud Claims Were Fact" [0]. Amused but not surprised to see this from her, I am quite aghast to see this from Apple.
The sentence in the filing is true: no reasonable person would see her opinion about an event as a fact. Opinions are not facts. Powell's problem is that her "facts" used to support her opinion are flaming dumpster-fire ridiculous and Loony Toons level crazy. (My opinion, also not a fact, is that she had a really bad filter for technical information, and so ended up filing complete trash in court.)
Apple is also making an opinion claim here: "buy" in an Apple context does not mean "buy" in the colloquial context. I think it's a dumb argument mostly unsupported by facts (don't know how well supported it is by law), but, again, it's their opinion.
Only the judge's opinion really matters, as well as the customer's when she decides not to "buy" this crap from hostile streaming services.
So if I "buy" an Apple M1 series computer, am I renting it or buying it? The only thing Apple can do to hardware is to quit supporting it via software updates, but I am still free to use it with the last supported software as long as it runs. (Depending on make/model/build quality, that may actually stop before software support ends like the 2016-2017 MBPs.)
There's pretty convincing evidence that you own that computer. Your ability to use it in some fashion (e.g. as a hammer) is not dependent on Apple permitting that use.
"no reasonable person" defense is used when the defendant knows they were caught in a lie and have no other defense. It's the legal version of "just a prank bro" or "I was kidding", and just as despicable.
Historically media has had a limited play-life. 78s, 45s and 33 warped, broke or got scratched, etc., tapes wore out, broke, got tangled etc., CDs scratched or deteriorated after some time. There are exceptional specimens for all the above, but a good number don’t survive long unless owned by an aficionado who took care of their media.
With digital you can have backups and in theory they could last forever as you convert the format into whatever is popular.
How do they price this? Do they not do CRCs and hashes and let your bits rot over time and have you buy a new one? How do you approach this commercially? Make music or video very, very faddish so even if it lasts forever no one will want to listen to or watch something out of style ten yeas hence?
I’m not defending Apple. I’m asking how do you price things reasonably if they potentially last forever?
> I’m asking how do you price things reasonably if they potentially last forever?
They can potentially last forever, but humans don't. Since Apple's stuff is associated to a personal account, I don't see an issue here, vinyls can also last for a life.
On the other hand, consumers have lost the right to lend, give or sell the stuff they buy. That's not priced either, and we see every possible move be done to make these operations user-hostile, if not forbidden.
For CD’s it’s legal to make backup copies in the US which are digital and thus don’t degrade.
Many of the oldest recordings still work, and can be played indefinitely with an optical needle. The time value of money means the possible purchase by a small fraction of buyers 20+ years out isn’t worth much at the time of sale. It’s only moving forward in time that makes anyone care about these sales.
I’m curious are iTunes and similar stores licensing the music to you? I’m guessing it is a license and not ownership. In either case I can see them addressing this problem of lower velocity with subscription only licensing where you license tunes for X amount of time.
Obviously not in the interest of consumers but I can see why sellers would go this route.
All Copyright is a license, you buy a physical CD you are also buying a copyright license. You are attempting to make a distinction when none is present or valid
No you don’t get a license with a CD, you just get an object.
It’s only copying that’s protected not existing physical copies. It’s the same with a book you get the physical book and that’s it. If the copyright expired then you can do all kinds of stuff with the book that you don’t otherwise get to do, barring a few exceptions that apply universally.
You're forgetting the performance license. With a (consumer grade) CD you get the rights for private performance of a non-commercial nature.
You don't usually get the rights to play the music for large audiences or for commercial use - those cost extra.
If you didn't get those rights then you couldn't even play the CD in the privacy of your own home, as that constitutes a performance of the work.
(Of course I kind of think there's something fundamentally strange with the idea of having to get "performance rights" for a recording that you supposedly own, but that doesn't change the law right now.)
How do you price real estate when it lasts forever? (The land, not the buildings)
Of course there's an actual answer to this as well, the economic concept of a discount rate; things far in the future are worth less than they are in the present, by an amount depending on interest minus inflation.
That’s not in dispute. What I’m saying is for the most part these media wore out and often times people had to repurchase those media. I’ve known people who had to replace many of their CDs. They didn’t get to go to the store and “return the defective one” for a warranty replacement.
and I have known many people that lose digital data because they did not back it up, they had to then repurchase that content, including things like DRM free ebooks, or drm free media
This is not a valid line of objection, just because if someone destroyed their CD and did not have a backup would have to rebuy, same is true if someone did not backup their DRM free content.
This HAS NOTHING TO DO with the ability to backup, or the fact that physical media may degrade over time. That is a non sequitur and a red herring all in one
In reality this is not even about digital media copyright, but more about the rights of digital platforms to unperson you and seize your legally purchase products for any arbitrary reason (or in many cases no reason at all)
I agree with your point that Apple should not be able to yank/revoke access and treat your account differently than anyone else’s other than by court order. This is worrisome.
My initial question was tangential and more thinking out loud how they deal with lower sales velocities.
To the extent there is " lower sales velocities. " of which you have presented no evidence to back that claim, you would also have to present evidence that the lower sales velocities were directly caused by a transition from physical to digital sales.
I would find that data to be very interesting, and based on what I know about the industry I would also say that neither one of those claims can be supported by any data I am aware of
I don't know. I have many tapes at home.~15-25 years old. I almost never touch them, but when i do they seem to work fine. Maybe the quality is bad, but i have nothing to compare it to.
Remember this sentence to change your mind for the next time you see some movie to buy online.