| The media is abuzz with reports of illegal music | | | | have also been attempted, but countermeasures |
| and movie downloading, peer-to-peer file sharing | | | | are created almost as fast. The inescapable |
| and the related legal and legislative battles being | | | | conclusion is that, short of a complete |
| played out in courts and in Congress. Many of | | | | government-enforced lock-down of the Internet, |
| these discussions perpetuate a myth that existing, | | | | entertainment businesses will increasingly have to |
| or soon-to-be developed, digital rights | | | | face the challenge of competing with free. |
| management (DRM) technologies are the key to | | | | Another challenge for DRM is its negative value |
| solving the entertainment industry's piracy woes. | | | | proposition for consumers. In the real world, a |
| As support for this notion, many people cite | | | | significant number of microwave oven clocks blink |
| Apple's successful iTunes music download service. | | | | 12:00 for years on end because consumers are |
| The conventional wisdom is that since iTunes uses | | | | either unable to learn how to set their clocks, or |
| DRM and iTunes is successful, then DRM must | | | | they are just unwilling to bother. Yet some in the |
| have been instrumental in that success. The truth | | | | entertainment industry continue to flirt with the |
| is that Apple's DRM technology, called FairPlay, | | | | idea that consumers will not only tolerate, but also |
| was indeed instrumental in Apple's success, but | | | | pay for, complex DRM-based solutions that are |
| not because FairPlay prevents piracy. | | | | terrible for preventing piracy, but pretty good at |
| For preventing piracy, FairPlay is not only totally | | | | inconveniencing the very consumers upon whom |
| ineffective, it was built that way on purpose. The | | | | commercial success depends. This notion that |
| iTunes client software enables consumers to burn | | | | DRM can protect rights holders and help them to |
| the songs that they purchase to audio CDs. Once | | | | compete with free is perpetuated by the |
| on CD, songs are unencrypted, unprotected and | | | | purveyors of multiple incompatible DRM solutions. |
| completely beyond the control of FairPlay. You | | | | These vendors find an eager audience with some |
| can copy the song to a file share; make a million | | | | executives who are so desperate to insulate their |
| duplicate CDs; or re-encode the song in another | | | | business models from change that they are willing |
| format by using legitimate tools like Windows | | | | to believe that DRM snake oil is the answer. |
| Media Player. So, since the notion that FairPlay | | | | In order to create a service that consumers |
| prevents piracy is simply not factual, why did | | | | would use, Apple had to provide burning capability |
| Apple bother to include it in iTunes? | | | | in the initial implementation of iTunes. One cannot |
| There are two very logical reasons for Apple to | | | | be certain, however, that such a feature will |
| use FairPlay. One has nothing to do with the | | | | always be available. At some future point, Apple |
| effectiveness of its anti-piracy features and | | | | could decide that it is in Apple's best interest to |
| everything to do with marketing. That is, having a | | | | remove the CD burning feature. If that happens, |
| DRM-based copy protection illusion made it much | | | | the only way for customers to get |
| easier for Apple to convince record labels to | | | | Fairplay-encrypted music out of iTunes will be to |
| distribute their music through iTunes. Another | | | | circumvent Apple's DRM, which is illegal due to the |
| reason for FairPlay's existence has nothing to do | | | | DMCA anti-circumvention provision and similar laws |
| with protecting rights holders from piracy and | | | | in other jurisdictions. It is also important to note |
| everything to do with protecting Apple from | | | | that burning capability is notably absent for iTunes |
| competition. Apple's iPod player and iTunes service | | | | video downloads. With the growth in popularity of |
| were designed to work together. FairPlay is used | | | | Apple's iPod, there has been a corresponding |
| to keep out interlopers. Any would-be iTunes or | | | | growth in Apple's market power. You can expect |
| iPod clone maker would almost certainly have to | | | | Apple to do everything possible to increase that |
| reverse engineer FairPlay, which makes the task | | | | power and erect barriers to competition. With |
| of creating a decent clone much more difficult and | | | | laws like the DMCA on the books, a critical barrier |
| gives Apple both technical and legal counterattack | | | | to competition has the full backing of the |
| options. Apple showed its cards when | | | | government's taxpayer-funded law enforcement |
| RealNetworks announced Harmony, a technology | | | | resources. |
| it developed to enable iPod users to buy songs | | | | Apple's iTunes has demonstrated that you can |
| from Real's on-line music store. Apple responded | | | | indeed compete with free. But as this document |
| by threatening that future software upgrades will | | | | has shown, the actual effectiveness of Apple's |
| probably break Harmony's compatibility. Apple also | | | | DRM in thwarting piracy played no part in that |
| suggested that Real's actions may have been a | | | | success. It is important to note, however, that |
| violation of the law because the Digital Millennium | | | | iTunes could not be successful solely by using |
| Copyright Act (DMCA) makes circumventing copy | | | | proprietary encryption to lock out competitors |
| protection illegal. While the validity of Apple's legal | | | | and by promoting its DRM to rights holders as an |
| argument is far from certain, one thing is clear: | | | | elixir to piracy. The other half of the iTunes |
| Apple intends to use its DRM to protect its own | | | | formula for success is completely dependent on |
| commercial interests, which have absolutely | | | | peoples' behavior: if consumers did not recognize |
| nothing to do with protecting rights holders from | | | | value in iTunes, they would simply not use it. |
| piracy. | | | | Moreover, virtually every song legitimately |
| Hackers have found technical ways around | | | | purchased through iTunes can be acquired for |
| FairPlay. Digital content pirates, however, do not | | | | free via illegal means. Apple's iTunes service, in |
| have to crack FairPlay; they can simply take | | | | combination with the iPod player, offers |
| advantage of a gaping, built-in hole. But even if we | | | | consumers a complete and integrated solution |
| disregard all past experience with copy protection | | | | that is easy to use, flexible (e.g. you can burn |
| and assume that FairPlay could be made | | | | songs to CD) and stylish. iTunes is attractive to |
| foolproof, it would still provide little or no | | | | consumers, not because FairPlay DRM is |
| protection from piracy to rights holders. Copies of | | | | restrictive, but in large part because it is not. |
| digital content are exact copies. They do not | | | | Vendors and pundits are doing a profound |
| degrade no matter how many times you duplicate | | | | disservice to the entertainment industry by |
| them. Consequently, even just one unprotected | | | | perpetuating the DRM myth and holding up iTunes |
| copy of a digital work can be perfectly duplicated | | | | as an example. With iTunes, Apple has |
| millions and millions of times while being distributed | | | | demonstrated the value of DRM for neither |
| by using file sharing technologies. Since many of | | | | consumers nor rights holders. Apple has shown, |
| the latest file sharing technologies, which include | | | | however, that you can successfully compete with |
| the wildly-popular Bittorrent, are freely available in | | | | free, and get consumers to open their wallets, if |
| source code form to anyone, the tactic of | | | | you offer them something better. The |
| litigating against proprietary P2P software and | | | | entertainment industry should take heed from the |
| service companies is becoming much less | | | | real iTunes example: create something that |
| effective. The entertainment industry has started | | | | provides convenience and value, not costly |
| going after the operators of Bittorrent servers, | | | | complexity, and and you just might take away |
| but as soon as one is taken down, more spring | | | | the incentive to acquire works illegally. That would |
| up. Technical measures for thwarting file-sharing | | | | make digital piracy obsolete. |