Apple Makes Questionable Copyright Claim To Pull Down iTunes Contract

from the shameful dept

There had been some buzz a while back when Digital Music News published an entire iTunes Radio contract, which was targeted at smaller indie labels, showing how Apple got to throw its weight around, presenting terms that were very much in Apple's favor over the labels if they wanted to participate in iTunes Radio. However, while it took a few months, Apple's lawyers finally spotted this and they have apparently made a copyright claim to get the contract taken down. I wonder how the small group of indie musicians who always fight for stronger copyrights feel about Apple using copyright to take down rather important information that they should know concerning the sort of deal Apple offers them....

While this may be possibly legal under the law, it demonstrates how the law can be used in ways that really have absolutely nothing to do with copyright's purpose. Apple didn't need copyright's incentives to create this contract. There is no market for the contract itself. The purpose in flexing the copyright claim here is one thing and one thing only: censorship. As law professor Eric Goldman explained:
"It's not out of legal bounds to do this. It's just kind of a jerk move. We all know what's happening here. Apple doesn't care about protecting the copyright of contracts. It's using copyright to try and suppress information that it doesn't want made public."
That said, I question whether or not this really is a legit takedown. While Apple can claim a copyright on the contract, it seems that DMN has a really strong fair use claim. The purpose was for reporting (a key purpose that supports fair use). The publication was in the public interest. The type of work is a "contract" for which copyright tends to mean very little. Finally, there's no "market" for the contract itself, and thus the impact on the market or the value of the copyright in the item is nothing. The only factor that weighs against it is the fact that the entire contract was used -- but as we've pointed out many times in the past, plenty of cases have been deemed fair use where the "entire work" has been used. This seems like a perfectly strong fair use case, though it might not be worth the legal cost to fight Apple over this, given the company's historical willingness to go absolutely bonkers against publications it doesn't like.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    dcfusor (profile), Oct 14th, 2013 @ 7:43am

    Like Microsoft's NDA?

    That prevents companies they settle with for "using their patents in linux and android" so no one can find out what those patents are and break them in court?

    Litigation over innovation is where we've landed, since companies no longer think growing the pie is worthwhile, just trying to grab a larger slice of a shrinking one.

    It's only a growth business for lawyers and other parasites.

     

    reply to this | link to this | view in thread ]

  2. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Oct 14th, 2013 @ 7:56am

    My FIX: Corporations should NEVER be allowed ANY copyrights.

    All Mike ever does is complain: I've just stated an absolute FIX to this and future corporate abuse and mis-use of a perfectly good system (which is intended in part to support individuals against corporations stealing their works).

    But for once Mike correctly states (in a negative way) the purpose of copyright: "[This has] absolutely nothing to do with copyright's purpose. Apple didn't need copyright's incentives to create this contract. There is no market for the contract itself." -- So, similarly to his attempt to triangulate "the small group of indie musicians who always fight for stronger copyrights", I expect to see the anti-copyright crowd here revile Mike for his pro-copyright position.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    PaulT (profile), Oct 14th, 2013 @ 8:09am

    Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    "All Mike ever does is complain"

    Sorry, I'm laughing so hard at the lack of self-awareness here I can barely finish that sentence.

    "I expect to see the anti-copyright crowd here revile Mike for his pro-copyright position."

    I've noticed you make a lot of false predictions based on strawmen, and never correct yourself on the many times you're proven wrong. I wonder why?

    Do you fancy addressing the actual opinions of people? Just once?

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 8:09am

    Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    "My FIX: Corporations should NEVER be allowed ANY copyrights."

    So then you will be happy if the MPAA/RIAA were NEVER allowed copyrights then.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    jackn, Oct 14th, 2013 @ 8:09am

    Re: http://www.price-hunt.com/

    price-hunt may damage your computer

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Shadow Dragon (profile), Oct 14th, 2013 @ 8:12am

    Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    And watch his explode.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    Gwiz (profile), Oct 14th, 2013 @ 8:14am

    Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    ...I've just stated an absolute FIX to this and future corporate abuse...

    How would you handle the individual artist who wants to assign their copyrights to a corporation? Would you simply remove that option from them?

    Also, how would you handle a huge group of artists doing work-for-hire for a enormous project, like say a Disney animated? Would they all get copyrights on the project?

    Details Blue. The devil is in the details and you never offer any - just rallying cries.



    ...and mis-use of a perfectly good system...

    Lol. If you mean a "perfectly good system" that isn't really achieving it's initial goal, then yeah, sure.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 8:15am

    Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    Heh, you are still here trolling... and making zero sense. When do you plan to stop making sensational news headlines look like a master thesis?

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 8:17am

    Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    "All Mike ever does is complain"

    BWAHAHAHAHAHAHAHA! Thats rich, coming from the #1 complainer against anyone who DARES question the almighty power of COPYRIGHT.

    Listen sparky, Mike has done more for the issues and problems of copyright than YOU. EVER.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Michael King, Oct 14th, 2013 @ 8:38am

    Copyright is a monopoly

    The thing about copyright is that it can (and it is) used to censor all types of legit content. Copyright is a monopoly and like all monopolies, whoever owns it gets to use it as they please.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 8:38am

    most important it shows how there is a desperate need for balance. when copyright is thrown at someone for breaking it, the penalties can be enormous. when copyright is abused in this and other ways, there are no penalties at all! good old USA justice! screw the people as much as possible if they do something wrong but let companies and the rich/famous do whatever they like with no penalties at all!!

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 8:41am

    Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    There is seriously only one comment on this article (at this time) that is not a reply to OOTB or spam. This comment section is starting to look like Youtube's...

    Please don't feed the trolls.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 8:42am

    Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    But...but....who will we feed to the rest of us when America implodes tomorrow?

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    TheLastCzarnian (profile), Oct 14th, 2013 @ 8:43am

    What the...

    I don't see how a legal document can be considered under copyright. Will the judge and jury be required to purchase a license to read this document if it goes to court? Is there really creative expression in it, or is it simply a list of requirements? Very strange...

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    jackn, Oct 14th, 2013 @ 8:57am

    Re: Copyright is a monopoly

    actually, thats not the way it works. There are clear usage patterns that involve critisism and education.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Ninja (profile), Oct 14th, 2013 @ 9:04am

    Oh why, dear Apple executives, meet Ms Streisand! We should send a thank you token to Apple for their efforts in spreading reports on their thuggish behavior far and wide.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    bigpicture, Oct 14th, 2013 @ 9:07am

    Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    CONTRACTS: There is also the Law of Contracts, a contract is between TWO or more parties. So which one of them actually has "copyrights" to the documents? Unless there is some sort of confidentiality agreement about the actual terms of the deal?

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    Karl (profile), Oct 14th, 2013 @ 9:38am

    Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    FIX: Corporations should NEVER be allowed ANY copyrights.

    If that's truly your opinion, then you have absolutely no right to bring up the "$200 million movie" argument ever again.

    After all, the artists who work on a movie do not, and never did, hold the copyright on the work that they put into that movie. Their work is a "work for hire" under the Copyright Act.

    Unless you somehow believe that movie studios are less of a "corporation" than Apple is?

    I expect to see the anti-copyright crowd here revile Mike for his pro-copyright position.

    The "crowd" here has largely been in agreement with Mike: that copyright must serve the sole purpose of promoting the public good, as is required by the Constitution.

    So, no, "we" won't criticize Mike for his "pro-copyright position," since it's the same position that "we" have had all along.

    It is people like you who are against copyright. Or at least against the form of copyright espoused by the Founders and codified in the Constitution.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Rich, Oct 14th, 2013 @ 9:44am

    Re: Re: Copyright is a monopoly

    Which doesn't really help when the copyright holder has all the money and power.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    DB, Oct 14th, 2013 @ 10:07am

    Contracts have very "thin" copyright protection

    Essentially all court rulings have held that contracts have limited or no copyright protection.

    As a practical matter, this is only way the contract system works. If you can't review, copy and edit contracts, negotiations become come much more complex. If you can't file them in multiple places, business record retention becomes much more complicated.

    This is an implicitly understood part of the legal system. You don't find extra contract terms explicitly describing how the document may be copied and stored (apart from non-disclosure term, which are not copyright related).

    I've always considered this to have an element of lawyers ignoring the rules that apply to everyone else. Lawyers can freely crib from each other, or use boilerplate, yet still charge clients for creating documents from scratch if they wish.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 10:27am

    Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    Troll, its whats for dinner...

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 10:57am

    I wonder how the small group of indie musicians who always fight for stronger copyrights feel about Apple using copyright to take down rather important information that they should know concerning the sort of deal Apple offers them....

    If they were going to enter into a deal with Apple, wouldn't they be given this information to read anyway?

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 11:01am

    Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    Actually Karl, the Constitution tasks Congress with that. Copyright itself is not enshrined in the Constitution. That's why the cries of "unconstitutional" surrounding various enforcement actions or court decisions fall on deaf ears.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    John Fenderson (profile), Oct 14th, 2013 @ 11:05am

    Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    The Constitution allows for copyright law and also sets out the precise purpose that copyright law is intended to achieve. The implementation details are left to Congress. However, if the implementation is such that the express purpose is not achieved, or the purpose is exceeded, I think it's fair to argue that the law is unconstitutional.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 11:15am

    Apple Computers was once sued by Apple Records for trademark infringement. Apple Computer was found not to infringe because they were not in the music business. What would happen if that lawsuit was refiled today? They should think twice about abusing the law, it could come back to bite them.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 11:43am

    It's not just Apple. Google has also been heavy handed in preventing Adsense partners from leaking the details of what they are paid for their content. This has nothing to do with the "copyrights" of the contracts. Don't be evil, my a**

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 11:56am

    Re: Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    In order to be "unconstitutional" a law needs to violate a right or guarantee memorialized in the Constitution. The copyright clause simply tasks Congress and provides a rationale. Can you point to a court case where a copyright provision was successfully argued as "unconstitutional"?

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    RazorGecko, Oct 14th, 2013 @ 12:17pm

    Money/Law

    Well here we can see how big companies can use the law any way they like in order so suit their needs. Yes I know that what they are doing is legal but it is paradoxical if you think about it!

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    John Fenderson (profile), Oct 14th, 2013 @ 2:49pm

    Re: Re: Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    In order to be "unconstitutional" a law needs to violate a right or guarantee memorialized in the Constitution


    The constitution primarily limits governmental powers. When the government exceeds a specific mandate -- i.e., a limitation -- such as the purpose of copyright, that is by definition unconstitutional.

    Can you point to a court case where a copyright provision was successfully argued as "unconstitutional"?


    Nope, but that doesn't matter for my argument. I'm not talking about what has been found Constitutional or not in court, I'm talking about the plain meaning of the Constitution.

    The courts have long had a spotty record of being able to determine constitutionality (according to the courts themselves), and as interpretation gets layered on interpretation over time, they get worse and worse and being able to make this call.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 4:00pm

    Re: Re: Re: Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    Nope, but that doesn't matter for my argument. I'm not talking about what has been found Constitutional or not in court, I'm talking about the plain meaning of the Constitution.

    Ummm, John..... whose job is it to interpret the Constitution and rule on its application to laws? Quite plainly, the "plain" meaning of the Constitution has little to do with its application. Otherwise, if you wanted to own a gun, you'd have to be a member of the national guard or a well-regulated militia.

    Thanks for playing!

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Paul Resnikoff, Oct 14th, 2013 @ 4:06pm

    Link on DMN Changed

    Hey everyone -- the link actually changed on DMN, as we just shifted platforms and updated our entire url nomenclature this weekend.

    Here's the new one:

    http://www.digitalmusicnews.com/permalink/2013/10/10/appleondmn

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 5:50pm

    Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    Way to somehow turn this into a justification of suing grandmothers.

    average_joe just hates it when due process is enforced.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Oct 15th, 2013 @ 1:13am

    Re:

    Apple wants to keep it contract confidential so that anyone negotiating with them is pretty well committed before they find out the details. When it takes months, if not years, to arrive a a contract, starting over with a different company is not very attractive near the end of contract negotiations.

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    PaulT (profile), Oct 15th, 2013 @ 1:24am

    Re:

    "What would happen if that lawsuit was refiled today?"

    You seriously need to keep up with current events. That already happened, twice in the last decade and was apparently settled 6 years ago: http://en.wikipedia.org/wiki/Apple_Corps_v_Apple_Computer

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    btrussell (profile), Oct 15th, 2013 @ 2:16am

    Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    Exactly! Two or more parties.

     

    reply to this | link to this | view in thread ]

  36.  
    icon
    btrussell (profile), Oct 15th, 2013 @ 2:22am

    Re: Re: Re: Re: Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    "Ummm, John..... whose job is it to interpret the Constitution and rule on its application to laws?"

    Ummm, ja, it is meant to be simple so everyone can read and understand. Not supposed to need a team of lawyers to be able to read it.

    What is your definition of "is?"

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Pragmatic, Oct 15th, 2013 @ 3:55am

    Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    Heh! This has been a fun rollercoaster ride, Blue. First of all, you're all about teh copyrites and $100,000,000 movies. Now you want to BAN teh copyrites for corporations after receiving a regular reaming from the TD commenters for constantly contradicting yourself RE: "The Rich" and "the hundred million dollar movies," which only "The Rich" can afford to make.

    Okay, you've shifted that far. What took you so long?

    But, as usual, you're wrong. Copyright is much more complex than banning its ownership by corporations would solve (it wouldn't). The answer is shorter terms and ring-fenced fair use laws. End of problem. I'd go with anything from 15-20 years, with a maximum of 30 or death of the creator.

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    Karl (profile), Oct 15th, 2013 @ 6:46am

    Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    Actually Karl, the Constitution tasks Congress with that. Copyright itself is not enshrined in the Constitution.

    The purpose of copyright, however, is enshrined in the Constitution:

    It will be seen, therefore, that the spirit of any act which Congress is authorized to pass must be one which will promote the progress of science and the useful arts, and unless it is designed to accomplish this result and is believed, in fact, to accomplish this result, it would be beyond the power of Congress.
    - House Report on the Copyright Act of 1909

    It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." It is, rather, "the essence of copyright," and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."
    - Feist v. Rural

    That's why the cries of "unconstitutional" surrounding various enforcement actions or court decisions fall on deaf ears.

    The Courts have traditionally allowed Congress a huge amount of leeway when they determine what does or does not "promote the Progress of Science" (here, meaning "learning" or "culture"). Far too much leeway, IMO, but there is a good reason for this. Congress is supposed to be the voice of the people. And copyright is supposed to be a voluntary contract between the public and authors: the public voluntarily gives up some of its free speech and property rights, granting a monopoly on those rights to authors, in exchange for "broad public availability of literature, music, and the other arts." (Twentieth Century Music Corp. v. Aiken.)

    Thus, if the people (through Congress) decide what contract is fair, it is largely outside the scope of the Courts to intervene. But it is a fact that Congress is required to make this sort of determination, and in any challenge to copyright statutes, the Courts have determined whether they did. If they did (and they have thus far), then the Courts have a hands-off approach, even if that "determination" is questionable.

    Simply put: to the degree (which you overstate) that "the cries of 'unconstitutional' [...] fall on deaf ears," it's primarily because the Courts trust the judgement of Congress. This is unfortunate, because when it comes to copyright law, almost no members of Congress are the "voice of the people." They are the voice of the highest donor, and corporate copyright interests have been throwing money at Congress for decades.

    ...But this is all a red herring. OOTB believes that all of us would turn on Mike, because he is "pro-copyright" for thinking that copyright must adhere to its Constitutional requirement. He is right that it makes Mike "pro-copyright," to some degree, but wrong that most people here ever thought any differently.

    Mike simply believes that copyright must in fact benefit the public - as shown by empirical evidence, and not taken on faith or unproven theories, or from the biased beliefs of rights holders. That does not make him, or anyone who agrees with him, "anti-copyright." But OOTB can't accept that anyone who doesn't adhere to their own beliefs is anything other than "anti-copyright."

    I'm just pointing out that he's wrong. Then again, he's always been obviously wrong, about pretty much everything, so maybe I shouldn't have bothered.

     

    reply to this | link to this | view in thread ]

  39.  
    icon
    The Groove Tiger (profile), Oct 15th, 2013 @ 7:09am

    Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    "Ok, let me get this out of the way: I'm going to agree with Mike on this post, but I'm contractually obligated to say that sucks first."

     

    reply to this | link to this | view in thread ]

  40.  
    icon
    Sheogorath (profile), Oct 15th, 2013 @ 1:54pm

    Dear Crapple...

    Please find linked here my response to your 'contract'.

     

    reply to this | link to this | view in thread ]

  41.  
    icon
    Karl (profile), Oct 18th, 2013 @ 7:33pm

    Re: Re: Re: Re: My FIX: Corporations should NEVER be allowed ANY copyrights.

    I know this thread is dead, but I just thought of one more point on the matter. After that I'll let it be.

    I previously said this:

    The purpose of copyright, however, is enshrined in the Constitution

    But, thinking about it, this is not quite true either. The reason I thought about it was as a response to this:

    The copyright clause simply tasks Congress and provides a rationale.

    Promoting the progress is not "a rationale" for the power that Congress is granted. Neither is it really the "purpose" for granting that power.

    Rather, promoting the progress is itself the power that is granted to Congress. The Constitution reads "Congress shall have the power to promote the Progress of Science and useful Arts." It does not read "In order to promote the Progress of Science and useful Arts, Congress shall have the power... (etc.)"

    Were that the end of it, then Congress could promote the progress in any way it chose - whether through IP laws, or through the establishment of national arts acadamies, or through direct funding of artists, or whatever. But that is not the end of it, for the Constitution restricts the power granted to Congress, by explicitly defining the method by which that power can be exercised: "by securing for limited Times to Authors the exclusive Right to their respective Writings."

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This