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This Is Why We Can’t Have Nice Things

Reason is running an interesting article about the demise of Microsoft’s “PlayForSure” music standard and the legal obstacles that have been put in place to prevent people from circumventing DRM (digital rights management) schemes that supposedly protect “content” from unscrupulous computer users:

Convinced that the tight integration between iTunes and the iPod was the secret to Apple’s success, Microsoft abandoned the PlaysForSure approach, shuttered the MSN Music Store, and built the Zune around yet another proprietary format.

As a result, music in the PlaysForSure format will not play—for sure or otherwise— on a Zune music player.


In ordinary circumstances, you would expect entrepreneurs or volunteers to pick up Microsoft’s slack and offer software to convert those old recordings to another format.But the Digital Millennium Copyright Act transforms what would normally be a promising business opportunity into a federal felony. Not only will PlaysForSure music not play on a Zune, but the DMCA makes it illegal, punishable by up to five years in jail on the first offence, for third parties to offer utilities to bridge that gap…  Under the DMCA, no one may “circumvent” a copy protection scheme without the permission of the platform’s owner.

The first and only time I’ve written to a Congressman was a letter I sent to Peter DeFazio regarding the DMCA a couple of years after the law had been passed (1998). I was convinced at the time that the DMCA served no one except large media organizations and felt that the law would end up punishing the wrong people — that is, legitimate consumers who’d done the right thing (or the legal thing, at least) and bought the product.

For my troubles, I recieved a polite reply from DeFazio’s office informing me that Congressman DeFazio appreciated my interest in the issue but felt that the DMCA was an important piece of legislation… etc., etc., etc. The ensuing years have proved that my concerns, as well as the thousands of others who had organized in opposition to the law, were well-founded. We’ve seen people prosecuted for writing open-source DVD software (the infamous DeCSS case) and the law has been thoroughly abused by all sorts of unscrupulous sorts of people for their own ends.

DRM software itself has become increasingly controversial. For instance, Sony/BMG found itself in legal hot water when it emerged that some of the copy protection software they included on some of the CD’s they were selling was installing unwanted (and nearly impossible to remove) software onto Microsoft Windows PC’s which opened up a number of serious security holes.

I myself had a DRM-related problem not long ago. I’d recieved an iTunes gift card for Christmas but my home computer runs Linux, an operating system that Apple has not seen fit to release a version of iTunes for. Luckily, I have an old Mac G4 which I could use to connect to and download songs from iTunes on. But actually playing the songs on my Linux machine would’ve been a serious pain. Luckily, Apple started releasing DRM-free music on iTunes, but it’s kind of hit-and-miss as to what’s actually available that way. Apple also has a bad habit of changing things up now and again so that “unsupported” systems don’t function correctly. While such efforts are inevitably circumvented, it’s proabably a violation of the DMCA to do so.

Now, the upshot of all of this, as the Reason article points out, is that honest consumers are being punished and music and software pirates aren’t being inconvenienced in the least bit:

It’s a rich irony that users who choose to break the law and download music from peer-to-peer file sharing sites don’t face these inconveniences. The DMCA ostensibly was aimed at stopping illicit file sharing, which continues unabated. There is no evidence that the law has kept music off peer-to-peer networks… And music on peer-to-peer sites is typically available in an open format such as MP3, which can be played on almost any device. Thus the DMCA’s only substantial impact on the music marketplace has been to inconvenience those who made the mistake of purchasing music from a legal online service.

The DMCA needlessly restricts consumers’ freedom to listen to their legally purchased music on the devices of their choice. In the name of fighting illegal downloads, it has created a big incentive to download music illegally.

Exactly right. It’s no wonder that consumers are flocking in droves toward alternate channels of distribution — the media conglomerates have, after all, made actually buying music frustrating, confusing, and ultimately a massive waste of money that, as in the example of Microsoft’s “PlaysForSure” venture or the DeCSS case, essentially forces consumers to become criminals in order to do something as simple as play a DVD or listen to music that they’ve already purchased.

In some cases, not only fair use but also free speech has come under fire. In the DeCSS case, for instance, the argument was made that since DeCSS was a copyright circumvention scheme, it was illegal to publish its source code. In response, activists started publishing the source code on t-shirts, putting snippets of the code in e-mail signatures, posting it on countless websites, and even coming up with an “illegal prime number” that represents the program, all in an effort to make it impossible to limit the distribution of DeCSS by copyright lawyers.

As far as I know, no one was ever prosecuted for such pranks, but such tactics shouldn’t have been necessary in the first place.

At this point, the question of how DRM, the DMCA, fair use, and free speech can co-exist (if at all) is not settled. Media conglomerates don’t seem to have yet figured out that they’re fighting a battle that they probably can’t win (that is, against a market that basically can offer the same product for free and without restrictions and where artists are increasingly supporting themselves with independent specialty and web releases, concert appearances, and merchandise). What remains to be seen is how far they’ll go before they’re forced to change their business model.

  1. Vincent says:

    iTunes, baby! A lot of content is DRM free, and the songs that aren

  2. Jerome Cole says:

    iTunes, baby! A lot of content is DRM free, and the songs that aren’t can be burned to a cd, reimported with the DRM bullshit stripped off.


    Do you have a Blu-Ray player and a 1080P capable TV? I do and they were worth every penny. The quality is absolutely astounding. Just wait a little longer and you will see that Blu-Ray discs will drop dramatically in price just as DVDs did. BTW every Blu-Ray player I have ever seen not is backwards compatible with DVDs but can upscale them to look very, very nice on HDTVs.

  3. Vincent says:

    HD-DVD and Blu-Ray (can) offer higher quality encodings and more bonus features than DVD.

    It’s hardly “bonus” if you’re being charged for it. And charging extra because you developed a technology that allows for better picture quality is rubbish, too. It’s exactly that mindset that got the record companies where they are today.

    “Oh, we’ll charge $18.99 for a Dual Disc, because the second side of the disc has a DVD layer on it with rad bonus features like studio footage and a music video!”

    Nonsense. No one wants it, and no one bought Dual Discs. If BluRay is going to supplant DVD and I have to go buy a new player, fine. But that player better be backwards compatible with my old stuff and the new discs better be comparable in price, otherwise it’s a pretty naked cash grab.

  4. Timbo says:

    On the other hand, as the management notes, you are a spamalicious ad-bot for shady software. So there’s that.

  5. Timbo says:

    “We should NOT have to pay multiple times for DVD, HD DVD Blu-Ray, iPod, Zune, PSP, mobile phones, etc. etc.”

    While I agree in principle, really it depends on the content — or more specifically, on the quality of the content.

    HD-DVD and Blu-Ray (can) offer higher quality encodings and more bonus features than DVD. I can see an argument that, having purchased a DVD, you should have to pay more for the same movie on Blu-Ray. But on the flipside, if you purchase a Blu-Ray movie, you ought to be able to transcode down to DVD legally.

    As for iPod, Zune, etc. – MP3 is supported nearly universally; in general you currently _don’t_ have to pay multiple times to play the same content on multiple devices. But if you bought a 128kbps MP3 and now want a 192kbps version, you’re going to have to pay again and I don’t see a huge problem with that.

    Ringtones are ridiculous. I particularly enjoy Rockstar’s take on this: a ringtone in GTA IV costs the same as a complete engine, frame, and body panel overhaul at the Pay & Spray.

  6. dvd copy software says:

    There seems to be no middle ground between a fair business model and the consumer’s fair use rights. The copyright holders need to be protected, but it’s not fair that consumers have to pay multiple times for the same content. You should be able to pay for one movie one time and be able to watch it’s on all different formats and devices. We should NOT have to pay multiple times for DVD, HD DVD Blu-Ray, iPod, Zune, PSP, mobile phones, etc. etc. Until a fair business model is developed, there will always be DVD copy software programs out there.

    Pimping commercial websites is lame. Link removed.
    -The Management.

  7. Vincent says:

    Yeah, obviously I’m not saying that they shouldn’t be allowed to use DRM (except in the case of the Sony/BMG debacle, where they were basically infecting peoples’ computers with malware). As you say, DRM really just has the effect of making pirates out of paying customers.

    As for WINE, I’ve had mixed luck with it, and running iTunes through WINE just seems like a massive pain in any case. I wouldn’t have even bothered messing with iTunes had someone not spent the money to get me that gift card. It’s great that Amazon has DRM-free music, though.

    It is obscene that old, corrupt morons who know nothing about technology are creating far-reaching laws that limit technological innovation.

    That’s part of the reason I’m attracted to the open source movement. Things are happening there, under the radar, that have the potential to really push things forward. I mean, take Apple’s OS X. While significant parts of the OS were developed at Apple HQ, an awful lot of it was borrowed from open source developers who’d been working on BSD for years.

    All of that’s not to mention that open source makes it nearly impossible for the government to police software distribution. When the code is free, all you really need is a compiler and a little knowledge. Once you’re at that point, all the old, corrupt morons in the world can’t stop new code from propagating in one way or another.

  8. Ian says:

    DRM is fine. If publishers want to release their material using inferior formats that frustrate their paying customers, then by all means they should go ahead and do it. They’re only encouraging people to pirate their shitty products.

    The DMCA, on the other hand, is probably the worst piece of legislation passed in the past decade– a span which has seen as many bad laws enacted as any in American history. It is the paragon of legislation that has no positive effects and a multitude of negative repercussions. It made things that are incredibly important to innovation and competition (cross-compatibility and black box reverse engineering) effectively illegal, restricted the ability for consumers to exercise their fair use rights, and meanwhile had no effect on actual piracy.

    It is obscene that old, corrupt morons who know nothing about technology are creating far-reaching laws that limit technological innovation. Imagine if, after having been invented, the printing press had been deemed illegal. Or the Xerox copier. Or magnetic disk drives.

    Also, I believe iTunes will run under WINE, but of course that’s a far from ideal solution. I’d just go with Amazon MP3s.

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