The reaction (“turkey… disaster”) to Microsoft’s Zune player has been almost uniformly caustic. (Tim rightly points out that Apple’s iPod, with which the Zune is contrasted unfavorably in most cases, was developed in an entirely different legal universe.) There are a lot of problems with the Zune, most prominently that PlaysForSure really means PlaysForNow. Apple’s FairPlay DRM may be annoying, but at least it’s consistent.
One feature that has taken the brunt of the criticism has been the Zune’s ability to share, on a limited basis, songs with other Zunes via the player’s built-in WiFi. If you and I both have Zunes, you can send me a song (known, appallingly, as “squirting” – apparently the work of a marketing summer intern with a sense of humor) that I can play 3 times or keep for 3 days (whichever comes first). This feature has been panned on numerous fronts: it ignores fair use, it’s too short a trial period, it’s an unimaginative use of the WiFi capabilities, and it’s likely to annoy users. All are true.
With that said, I think the critics, in some cases, have short memories. One of the primary defenses of the Napster peer-to-peer file sharing network was that it allowed music consumers to try out songs or artists before buying – in effect, a sampling or trial-basis argument. The Ninth Circuit didn’t buy that this constituted fair use, and Napster went down for the dirt nap. However, if we take this argument seriously, then Microsoft’s Zune is meeting precisely this strongly-felt consumer need, and in a way that’s concordant with the goals of “try before you buy.” Squirting (what’s the likelihood that Info/Law gets filtered in Saudi Arabia based on this post?) is quite limited, but those limits seem well-tailored to the sampling theory that many put forward as a key justification for Napster.
The real argument, of course, is that consumers want to do more with songs than just sample them and go on to buy them. Consumers unhappy on this basis, though, should take it up with the record labels rather than Microsoft; the labels are the ones who’ve resisted more expansive uses of their material and who’ve claimed that even ripping one’s songs from CD to MP3 is a licensed use – one that violates copyright, but that operates at the label’s grace. Thus, squirting may be a good thing, even if we’d prefer a gusher rather than a trickle.