France and the End of DRM as We Know It

2006 – It seems that you can’t win for trying. Apple and Microsoft have each developed DRM (Digital Restrictions Management) technology that provides enough security for the recording industry to allow online music sales.

The whole point of online music stores is to sell piracy-proof content with enough protection to keep the recording industry happy at prices that will keep the music buying public happy.

Now that whole system is being questioned.

I See London

Those prices are the subject of an EU investigations, which is looking into complaints that the UK iTunes Music Store (iTMS) charges a higher price than in other countries (see Europe Probes ‘Rip Off’ Apple iTunes Pricing).

Here in the States, that would be called price fixing, and the federal government is looking into such allegations here (see US Probes Online Music Price Fixing).

In the UK, it’s apparently unfair not to price fix – or at least charge a different rate at the UK iTunes Music Store than, say, the French one.

As commentator Paul Harvey says so often, it’s not one world.

I See France

Speaking of France, they’ve just passed a law (see links at end of article) that requires interoperability between protected iTMS tracks and non-Apple music players – and between Windows Media protected content and non-PlaysForSure players. In short, the ruling says that if it plays on one platform, it has to play on all.

Where were French politicians during the Beta vs. VHS wars? Where was this kind of thinking when 8-tracks and cassette tapes battled it out in cars and homes? Where will they be when the next two DVD standards duke it out?

I See DRM’s Underpants

Some people are already wondering if Apple might pull out of the French market rather than open up its FairPlay DRM – because once it’s open in France, the whole world will have access to the technology. Another question is whether the record companies will pull out of the iTunes Music Store over the loss of content protection.

According to Apple spokeswoman Natalie Kerris, “The French implementation of the EU Copyright Directive will result in state-sponsored piracy.” And she says that while online sales may decline, this will also benefit Apple: “iPod sales will likely increase as users freely upload their iPods with ‘interoperable’ music which cannot be adequately protected.”

France has definitely sided with the consumer in the DRM war, and I’m glad to see them standing up for fair use. It’s a battle we seem to be losing here in the States, and I applaud the thinking behind the French law.

That said, I don’t applaud the law itself. For instance, downloading a pirated music track, a movie, or a copy of Microsoft Office using peer-to-peer software could subject you to a €38 (US$46) fine. While this may be a deterrent against pirating music and DVDs, it could be a boon for software pirates.

And as much as I advocate fair use, the simple fact is that Apple and others have signed agreements with the record companies to only sell protected content. This could backfire on the French, resulting in the complete loss of online music services since nobody profits when all restrictions are removed.

Where Do We Go from Here?

It’s a real catch-22. If everyone charges the same price for content, it’s price fixing. If someone charges a higher price, it’s unfair to consumers. If DRM circumvents fair use, that’s unfair to consumers. And if DRM is eliminated, that’s not fair to the artists or the recording industry.

The solution is simple, but it’s one Microsoft will like a lot more than Apple. The solution is a single industrywide DRM scheme that works with iPods, PlaysForSure players, Windows Media Player, the iTunes Music Store, and all the other online stores.

The ideal solution would be open source so neither Apple nor Microsoft would benefit from creation of the standard – and so those who don’t use Windows or OS X can have access to online music stores and the protected content they sell.

This would result in an end run around the French law. Instead of making two proprietary systems interoperable, switching to a single public DRM scheme would solve the problem.

The other issue will be restrictions management, which everyone will have to hash out together. Will all content have the same restrictions? How many players can you put your content on? How many CDs can you burn from a track or playlist? Will all players support subscriptions?

And then there’s the question of legacy players, especially those 40+ million iPods out there. Could we expect Apple to provide software updates to make them compatible with a new open source DRM scheme?

And finally, there’s the question of legacy content. Would we be able to download copies of tracks we’ve already purchased from iTMS and other services with the new protection scheme?

The Best Interests of All

Whatever the logistics, I believe a public DRM system serves the best interests of everybody – artists, the recording industry, online music resellers, and the people who buy digital music players and download online content.

It might even lead to some price competition between the online music services, although I have a feeling the recording industry will make that virtually impossible.

Maybe we’ll be able to look back at this in a year or two and thank the French for breaking the deadlock between iTMS/iPod/Fair Play and Microsoft’s competing world of PlaysForSure content, players, and services.

Maybe we can all win in the end.

Update: In January 2009, Apple announced that it had reached agreement with all music publishers to eliminate DRM from music sold on the iTunes Store. By the end of March 2009, all music as DRM-free.

Further Reading

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