All Music Apps are not treated equally, even though they may be functionally similar

Gigi recently gave a speech in Boston, where she discussed a number of copyright reform proposals that are required to protect copyright holders’ interests. The need to establish the Sony Betamax standard of secondary liability for infringement and non-commercial personal use of one’s own lawfully obtained material are two examples. To ensure that content creators and innovators of devices and software continue to thrill customers with new ways to use the material they’ve lawfully acquired, as well as encourage them to consume more of it. Recently, a slew of interesting new capabilities and games have hit the market, which I believe illustrate what we’re discussing here.

The first is dzwonki na telefon. For a long time, I’ve disliked ringtones–not just the expense of renting a 30-second clip of a song from a mobile phone company, but also why customers aren’t simply using the music they already own. Apple has recently jumped in by allowing iTunes users to utilize portions of songs on their iPhone. Apple’s is more competitive than other ringtone vendors in that it gives customers greater control over the song segment that plays when their phone rings, as well as price and duration of use. When Apple prevented any song in her library from being used as a ringtone, however, the user’s options were restricted. The “chance” to repurchase the song (or portion of it) to have it sync’d with her iPhone occurs after the snippet has been generated.

The fourth is GH3, which has become increasingly popular in recent years. The highly successful Guitar Hero 3 recently debuted on several gaming platforms and will soon be available for PC and Mac. It’s a game in which you can competeively strum tunes and harmonies on the screen using a simplified guitar controller. It’s a lot of fun. The iTunes Store has introduced a new iPod-only game, Phase, which is now accessible. Phase and Guitar Hero have comparable gameplay, although it’s done on different platforms: one on an iPod and the other on a guitar controller. The primary distinction is in the music that’s played: whereas Guitar Hero requires users to play songs they already own but do not have access to through Apple Music, Phase allows them to jam to their existing tracks while they’re in their library.

The iPod, iPhone’s ringer, and Phase at their basic level are computer programs that play someone else’s music. Because these applications are all digital, it’s reasonable to think they can all playback an unDRM’d digital music file, such as your favorite tunes just waiting to be played in your music library. There isn’t anything stopping a developer from enabling you the user to utilize your own songs under copyright law in this context. In the case of the iPhone, your music will play “for free” in its iPod software, but you won’t be able to make them as a ringtone with the phone’s ringer application. The Phase publishers, on the other hand, decided to let you jam out to your own tunes.

What do you think the motivation is for these developers? Is it possible that they’re concerned about liabilities? What are your thoughts on the subject?