iPod, Ringtones, Guitar Hero, and Phase: All Music Apps are not treated equally

Gigi recently gave a speech in Boston where she highlighted a number of changes to copyright law that are needed to enforce copyright users rights. Two of the concepts deal with non-commercial personal use of one's own legally obtained content and the need codify the Sony Betamax standard of secondary liability for infringement, to ensure that developers and innovators of devices and software will continue to excite consumers with new ways to use the content they've legally purchased, and, shocker, even encourage them to consume more content. Recently a series of fun new features and games are hitting the market that I think highlight what we're talking about here in these reforms.

The first, is ringtones. For a while now, ringtones have bothered me--not just the absurdity of how much cell phone carriers are charging for a short-term rental of 30 seconds of a song, but also to question why users aren't simply using the songs they already own. Apple recently got into the game by allowing iTunes users to take snippets of songs to use on their iPhone. While compared to other sellers of ringtones, Apple's is competitive by giving users more choice as to the segment of the song that plays when the phone rings, price, and length of use. However, the user's choice is limited when Apple prevented any song in her library from being used as a ringtone, and instead only those tracks that were licensed for said purpose by iTunes. After the snippet is made, the user has the "opportunity" to repurchase the song (or excerpt of the song) to have it sync'd with her iPhone.

Another is GH3. The very widely popular Guitar Hero 3 debuted recently on multiple gaming platforms, soon to be including the PC and Mac. It's a game that allows players to competitively strum melodies and harmonies of the songs playing on the screen on a simplified guitar controller. It's a lot of fun. Enter the new iPod-only game, Phase, introduced this week via the iTunes Store. Phase and Guitar Hero have very similar gameplay, albeit implemented on different devices--one on an iPod and the other on a guitar controller. The big difference is in the songs that are played: unlike Guitar Hero, Phase lets the player jam along to the tracks that she already owns and are in her library.

The iPod, the iPhone's ringer, and Phase at their base level are computer programs that play someone else's music. Technologically, because these programs are all digital, it's reasonable to presume that they're all capable of playing an unDRM'd digital music file, like those favorite tracks just waiting to be played in your music library. In this context, under copyright law, there's not anything preventing a developer from enabling a you, the user, from using your own tracks. In the context of the iPhone--your songs will play "for free" in its iPod application, but Apple restricts your ability to play those same tracks as a ringtone with the phone's ringer application. The Phase publishers made a different choice and allow you to jam out to your own tracks.

What's the thought process for these developers? Might it have to do with liability concerns? What do you think?

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