Anyway, the ringtones piece was super popular, got something close to 1000 Diggs, and got linked all over — even by Jon Gruber at Daring Fireball, which was personally exciting, because I read his site every day and respect his take on things (with a couple obviously notable exceptions). Of course, then I followed another link at DF several days after that to an unsigned “MacJournals.com” piece at Macworld which breezily discounted my analysis and proceeded to reach the exact same conclusion I did for essentially the wrong reasons. This pissed me off — I actually tried to followup with Macworld and start a dialogue about the topics raised, because my rebuttal was so simple, but there was no reply and I had better things to do, so I forgot about it a day later and moved on.

Of course, today Apple released a new version the iPhone firmware that re-enables users to make their own ringtones, and I got to thinking about it and got pissed all over again. So here we are. This isn’t the usual pimp-my-band / drinking story that usually ends up here, but this kind of analysis doesn’t really belong on Engadget (or Transmission, for that matter), so deal.

In brief, MacJournals took issue with my reliance on a decision of Copyright Office which stated that merely truncating a digital song file does not constitute the making of a derivative work — according to the anonymous MacJournals author, that decision doesn’t matter because you’re making a straight-up copy regardless. This is actually a really obvious point, and one that I ignored because it’s so obvious — if merely making a digital copy was enough to make ringtone creation illegal, we’d all be screwed.

Here are the steps you go through to make a ringtone from a CD:

1. Buy a CD.
2. Copy a song from the CD to a computer.
3. Do something to edit and mark that song as a ringtone.
4. Copy the song to your phone.

Now, here’s what I chose to focus on:

1. Buy a CD.
2. Copy a song from the CD to a computer.
3. Do something to edit and mark that song as a ringtone.
4. Copy the song to your phone.

And here’s what MacJournals chose to focus on:

1. Buy a CD.
2. Copy a song from the CD to a computer.
3. Do something to edit and mark that song as a ringtone.
4. Copy the song to your phone.

That’s quite a difference. Why? Because if you remove step 3 and just focus on 2 and 4, you’re left with:

1. Buy a CD.
2. Copy a song from the CD to a computer.
3. Copy the song to your phone.

That series of actions — what we’d generally call “ripping” — looks awfully familiar, doesn’t it? Right, that’s exactly how a friggin’ iPod works. Have you heard of it?

Of course, MacJournals tried to dress this up with a lot of rambling nonsense about the history of compulsory licenses and digital phonorecord deliveries, but all that really served to do is make it glaringly obvious that whoever wrote that piece is not a lawyer (or a shockingly good one), because the relevant action here — making a ringtone — is never actually dealt with. If truncating a song did constitute making a derivative work, we’d all be doubly screwed, because we’d be infringing the copyrights of the label and the songwriter. But since it’s not, the only copyrights that are implicated are those of the label, and if that’s true, ripping a CD to an iPod is equally infringing.

Now, that issue hasn’t been decided either. If you want to get a bunch of copyright attorneys into a fight, just bring up ripping. There’s a solid argument under the market factor of fair use that ripping is not an infringement, but fair use is decided on a case-by-case basis and it really hasn’t hit the courts yet. The labels themselves say contradictory things about it, to be sure. I’ll give you that. But I deliberately chose to ignore it because it really doesn’t have anything to do with making ringtones — I didn’t want to miss the forest for the trees, as it were. MacJournals went straight for ‘em.

It seems like MacJournals peddles this kind half-baked analysis a lot, because the only other time I’ve read anything by them is when they got their ass handed to them over their take on ZFS (also linked by Gruber). No wonder they keep all their authors safely anonymous.

UPDATE: I’ve changed it to the final art. It’s much nicer now, more blended / color corrected.

I think my version is much better than the movie, actually.

Never have I been so excited and then so very very sad.

We’re planning on releasing our next track, “Devotion,” shortly. You can hear a prerelease version of it on our MySpace — we think it’s pretty hot.