Is This the End of Copy Protection?

An essay with the unassuming title of "Thoughts on Music" has certainly caused a furor over the last week. Of course, it didn't hurt that it was written by Apple's Steve Jobs or that he stated absolutely that digital rights management copy restriction systems "haven't worked, and may never work, to halt music piracy."

No he didn't! we hear you saying. Oh, but he did, he did. Why would Jobs, who runs the largest DRM-encumbered download website of them all, say such a thing? There's no shortage of speculation on that point.

For one thing, the Norwegian Consumer Council had just determined that Apple's FairPlay DRM failed to meet the country's requirement for interoperability, since it locks iTunes Music Store downloads to a single company's portable music players: Apple's.

But wait, Jobs addressed that in "Thoughts," didn't he? "Today's most popular iPod holds 1000 songs, and research tells us that the average iPod is nearly full," Jobs wrote. "This means that only 22 out of 1000 songs, or under 3% of the music on the average iPod, is purchased from the iTunes store and protected with a DRM. The remaining 97% of the music is unprotected and playable on any player that can play the open formats. It's hard to believe that just 3% of the music on the average iPod is enough to lock users into buying only iPods in the future. And since 97% of the music on the average iPod was not purchased from the iTunes store, iPod users are clearly not locked into the iTunes store to acquire their music."

Torgeir Waterhouse, senior advisor of the Norwegian Consumer Council, told website Macnn.com Jobs "turn[s] the whole issue on its head by stating iPod owners are not locked into [the] iTunes Music Store—the issue our complaint [addresses] is of course the opposite, iTunes Music Store customers are locked to the iPod." Still, he concluded, that Jobs' call for an end to DRM was "good news."

Apple also faces a legal battle in the US: Tucker v. Apple Computer alleges that Apple unfairly restricts consumer choice by not supporting Microsoft's PlaysForSure and Zune DRMs.

Record Industry pundit Bob Lefsetz also thought Jobs, while right to call for an end to DRM, was still buying into the record industry's outmoded business model of selling individual tracks.

"Unfortunately, this same man still thinks sale by track will win," Lefsetz wrote. "That people only want all that music because it's free, that they don't play much of what they steal. That's an incredible misconception. People only steal what they want, and they want music!

"Give the people what they want. A ton of music at one low price per month. Maybe make them sign up for a year at first, just like [when] the iTunes Store was Mac only. Experiment.

"Sometime in the future, no one will own their music, everybody will rent it, music will be a service."

Even so, Lefsetz gave Jobs major props for the vision thing: "As for Steve Jobs? His play is iPods, not individual songs. And if he's willing to give up his monopoly, his locked system, isn't it time for the labels to move into the future too?"

They just might. The Wall Street Journal reported on February 9 that EMI Group PLC has been consulting online retailers about the possibility of selling its digital music catalog as un–copy-protected MP3 files. EMI declined to comment on the story, although spokesperson Jeanne Meyer did allow that the company had experimented with releasing singles by Norah Jones, Lily Allen, and Reliant K as DRM-free MP3s. "The results of those experiments were very positive, and the fan feedback has been very enthusiastic."

Anti-DRM momentum, in fact, seems to be building. In The Register, Steve Gordon, erstwhile Sony Music lawyer and author of The Future of Music, penned an article called "The Slow Death of DRM": "Amazon.com is reportedly itching to get into digital downloads, but is holding out for a DRM-free service. Amazon is an important outlet for both music and MP3 players including the iPod, and it already has relationships with both consumers of music and the major labels. Amazon may in itself have the power to force a DRM strategy shift. Calls for discarding DRM are also coming from Rhapsody and Yahoo!"

Predictably, the Recording Industry Association of America (RIAA) was less than enthusiastic about a world without DRM. In a statement issued the day after Jobs' "Thoughts," the RIAA responded to his "second alternative," saying, "Apple's offer to license FairPlay to other technology companies is a welcome breakthrough and would be a real victory for fans, artists, and labels."

That's a real head-scratcher, since Jobs did not make that offer. In fact, he explained why that wouldn't work: "The second alternative is for Apple to license its FairPlay DRM technology to current and future competitors with the goal of achieving interoperability between different companies' players and music stores. On the surface, this seems like a good idea since it might offer customers increased choice now and in the future. And Apple might benefit by charging a small licensing fee for its FairPlay DRM. However, when we look a bit deeper, problems begin to emerge. The most serious problem is that licensing a DRM involves disclosing some of its secrets to many people in many companies, and history tells us that inevitably these secrets will leak. The Internet has made such leaks far more damaging, since a single leak can be spread worldwide in less than a minute. Such leaks can rapidly result in software programs available as free downloads on the Internet which will disable the DRM protection so that formerly protected songs can be played on unauthorized players. . . . Apple has concluded that if it licenses FairPlay to others, it can no longer guarantee to protect the music it licenses from the big four music companies."

We can only conclude that the RIAA didn't respond to Jobs' third alternative, "abolish DRMs entirely," either because it was so excited at the thought of Apple extending FairPlay's reach that it didn't finish the essay or because the words "abolish DRM" simply scramble its neural network.

Audiophiles probably shouldn't start popping the champagne corks just yet, however, since nobody seems to be proposing to offer open-access high-resolution digital files, just unencumbered MP3s—and undoubtedly the 128kbps files that have become the standard, at that. That means we still have our work cut out for us, demonstrating to anyone who will listen that they can hear the difference between a lossily compressed file and an intact musical depiction. That in itself will be difficult, but getting rid of copy protection will at least make it easier.

We're with The Economist on this one. Yes, Jobs' call for dropping DRM is self-serving, but it is the right way to go. Far from protecting the rights of artists, DRM is a brake on the music industry that confuses and frustrates legitimate consumers while not curbing true piracy. And self-serving or not, it isn't really a change of mind for Mr. Jobs, since in 2003 he told Rolling Stone that the music industry was "technologically innocent," politely dodging Jeff Goodall's leading description of "technologically ignorant."

"It took us 18 months [to convince major labels that iTunes could work]. And at first we said: None of this technology that you're talking about's gonna work. We have Ph.D.s here that know the stuff cold, and we don't believe it's possible to protect digital content."

Perhaps the major labels are finally ready to listen.

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