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.
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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.
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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.
