I have sat by quiet as long as I can. Admittedly, that often isn’t very long. In this case, I have sat by while absorbing all the arguments in all of the recent columns on the subject of Apple’s new ringtone policy for its iPhone. And I have tried to digest it all and decide my personal viewpoint. I am done. My viewpoint is that the policy stinks and has no rational justification.
Before I offer the justification for my conclusion, let’s backtrack a bit. Let’s start by reviewing exactly what Apple’s policy is: If you want to add a ringtone to your iPhone, you must first purchase the song from the iTune’s Store for 99 cents. You must then pay an additional 99 cents to convert the song to a ringtone. Further, at the moment, only a small subset of the songs available from iTunes qualify for conversion to a ringtone. Incredibly, most songs you own or can purchase cannot yet be turned into ringtones even if you are willing to pay!
As ridiculous as I believe this policy is, I don’t want to sound too critical of Apple here. I believe they don’t much like the policy either. Rather, the policy is being imposed on them by the recording industry (RIAA). As pointed out by David Pogue (among others), it is actually a better policy than you are likely to find elsewhere. Sprint, for example, charges $2.50 to rent a ringtone for 3 months! You have to keep paying to keep using it. With Apple, you get the entire song plus the ringtone for $1.98, and you get to keep it forever.
Still, there is something fundamentally ludicrous about having to pay as much (or more) for a 30 second snippet of a song than you would have to pay for the entire song. The only thing more ludicrous is that enough people are willing to tolerate this, that the recording industry has turned ringtones into a multi-billion dollar profit-making machine.
The crux of the matter, for those who want to be ethical and not break the law, is whether the recording industry has any legal right to enforce such a policy. Is it in fact illegal to create your own custom ringtones for free, in violation of Apple’s policy (something which can be easily done with software such as iToner and MakeiPhoneRingtone)?
The answer to this question is sufficiently unclear that pundits (and lawyers quoted in columns written by these pundits) have come down on both sides of this fence. Some (such as Endgadget and Daring Fireball ) clearly believe that the policy has no legal foundation and you should feel free to create your own ringtones. Others (such as the MDJ) argue that there is a legal defense for the RIAA’s position, although it hangs by the thread of the nitpicking and cherry-picking parsing of legal language on which the RIAA thrives. The MDJ correctly notes that Fair Use (which is one basis for allowing repurposing of copyrighted materials by individuals) is not actually a law, but a doctrine open to various interpretations. The MDJ further points out that a ringtone is a “separate delivery of a recorded song” and as such is subject to a separate fee from the user. The MDJ doesn’t like this any more than anyone else (outside of the RIAA of course), concluding, “Yes, this sucks, but it’s the law.”
After considering all of this, I simply don’t buy the RIAA position, literally or figuratively.
Even if I accept all of the arguments presented in the MDJ article, it still doesn’t explain why I should not be able to take a song I already legally own (from a CD purchase) and use iTunes to turn it into a ringtone for 99 cents. Nor does it explain why I can’t just purchase a ringtone version of a song for 99 cents, without having to also buy the entire song. Why should I have to make a double or even triple purchase of the same song just to get a ringtone? There may be technological and practical reasons that make this difficult for Apple to implement, but not legal restrictions.
Finally, I don’t even accept the core of the pro-RIAA-viewpoint argument. And neither does Apple or the RIAA itself. That’s right. Apple and the RIAA already allow the equivalent of ringtone creation for free.
How so? For starters, they do it in the entire iLife suite of software. To see what I mean, open iMovie and insert a song from your iTunes Library to serve as a background for a 30 second movie you are creating. Bingo! You have just used a 30 second snippet of a song from iTunes for a different purpose than simply listening to the song. You can even create a DVD from your movie and play the DVD at the same time that someone else is listening to the same song directly from iTunes. How is that any different from what is done with ringtones? It isn’t. Yet Apple allows this, apparently without objection from the RIAA.
Heck, if you use iWeb, you can create a Web page containing iTunes music that could potentially be listened to by thousands of people a day, all at no charge. But a ringtone for your own personal listening benefit? Nope, that you have to pay extra for.
It’s also okay to copy an entire iTunes Library from a computer to an Apple TV, thereby allowing the user to play the music on both machines at the same time—with no charge for doing this. Yet, you cannot copy a single 30 second excerpt from one song to your iPhone without having to pay for the privilege. Absurd.
There is only one explanation to account for all of this absurdity. The ringtone business began when phone companies could easily restrict what could transfer to your phone. They, and the recording industry, made a ton of money taking advantage of this. Technology has now evolved; the transfer limitation no longer exists. But the greedy folks behind ringtones have not changed. They continue to cling to a model that no longer works and no longer makes any sense—legally, ethically or any other way except in terms of their profit. Happily, at least for the moment, you don’t have to play along.
