By John Gruber
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Earlier this month, the British Phonographic Industry — the organization that collectively represents record labels in the United Kingdom (i.e. the British equivalent of the RIAA) — granted explicit permission to Britons to rip music from CDs to digital formats suitable for use on portable music players.
Yes, that’s right: until earlier this month, anyone in Britain who copied music from their own CDs to an iPod (or any other digital player) did so under the threat of prosecution. British copyright laws do not contain the same fair use provisions that we enjoy here in the United States. In a statement issued before the House of Commons Select Committee for Culture, Media, and Sport, BPI Chairman Peter Jamieson said:
“Traditionally the recording industry has turned a blind eye to private copying and has used the strength of the law to pursue commercial pirates.
“We believe that we now need to make a clear and public distinction between copying for your own use and copying for dissemination to third parties and make it unequivocally clear to the consumer that if they copy their CDs for their own private use in order to move the music from format to format we will not pursue them.”
That’s good news. Common sense has not fared well in our current copyright wars.
Common sense evaporates, however, with Jamieson’s statements regarding Apple and the iTunes Music Store.
Jamieson acknowledges the huge contribution Apple has made to the development of the download business and the enormous appeal of its integrated hardware and software. However, when asked about iTunes dominant market share in downloads, Jamieson said, “It’s not particularly healthy for any one company to have such a dominant share.”
iPods currently only play unprotected MP3 files, such as those ripped from CDs, or songs downloaded from the iTunes Music Store. It applies its own Digital Rights Management (DRM) to the downloads it sells, that prevents them from being compatible with non-iPod music players. The DRM also prevents downloads purchased from most other legal download services, such as Napster and HMV Digital, from playing on iPods.
Jamieson called on Apple to open up its software in order that it is compatible with other players. “We would advocate that Apple opts for interoperability,” he said.
What they’re advocating makes no sense. What, exactly, would “interoperability” entail?
Apple could license FairPlay to other device manufacturers. This is certainly possible, but one would presume, however, that Apple would only provide such licenses for a fee. And thus this would not effectively reduce the dominant position Apple currently holds in the legal download market. They’d just be in a position similar to Microsoft’s in the PC operating system market.
Or, Apple could modify iTunes and iPods to play DRM-protected Windows Media files, like the ones from Napster and HMV Digital and dozens of other also-ran legal download sites. Maybe even to reduce confusion, they could just shutter the ITMS and abandon FairPlay. Then instead of Apple’s technology dominating the legal download market, it’d be Microsoft’s, and I’m sure that’d be great for everyone.
Apple can’t “just play music from other stores”; the whole point of DRM is that there’s secret juju encrypting the data in the files. To play them, Apple would have to obtain a license from Microsoft, and you’re just fucking nuts if you think Apple is going to do that. Microsoft charges money for these licenses, and Apple would be forever after beholden to Microsoft for continuing DRM licensing.
I’m not disagreeing that Apple’s dominance is unhealthy for the industry. But the executives in the record industry — on both sides of the Atlantic Ocean, apparently — are too ignorant to realize that what they want is technically impossible. The industry’s idea of a “perfect” DRM scheme is one that is not controlled by either Apple or Microsoft, and which gives only them (the record industry) complete control over what users can do with their downloads. Such a scheme does not exist, and it does not exist because it isn’t possible.
But interoperability already exists: you get it with MP3 files, and any other non-DRM-laden file formats.
So what Apple could do to achieve ITMS interoperability is simply remove the DRM from the music it sells via ITMS and deliver the files in non-encrypted AAC format. Users would be happy, as they’d get files unencumbered by FairPlay restrictions. The manufacturers of other digital music players would be happy, because AAC is an ISO standard.
[Update: I made a significant mistake in the above paragraph, having originally described AAC as an “open format” which doesn’t require licensing fees. It is not. It is an ISO standard, but it’s encumbered by patents and anyone who writes encoding or decoding software is required to pay licensing fees. The error is doubly embarrassing considering all the recent attention on issues relating to openness. My apologies.]
But that’s not what the music industry wants. Yes, there exist legal download stores that sell music in MP3 format (e.g. eMusic.com) — but they don’t have content from the major record labels, because the major record labels refuse to allow their music to be sold for download without DRM. The music industry’s insistence upon DRM is what put the ITMS in the position that Apple now enjoys; the record industry is decrying a lock-in advantage that they themselves handed to Apple so they could deny their customers (i.e. us, the people who listen to music) the interoperability they now say they want.
It is possible that even if the major record labels were to allow legal downloads of non-DRM-laden music that Apple would resist, out of the selfish desire to maintain the lock-in advantage that FairPlay’s DRM provides. But at least it would give the record industry a principle to stand upon: We call upon Apple to open the iTunes Music Store by removing the DRM, and Apple is refusing. And they could more or less force Apple’s hand by permitting other download stores to distribute music in iPod-compatible non-DRM formats.
Record industry executives refuse to believe what is patently obvious to anyone with a clue — they are never ever going to regain complete control over the distribution of recorded music. They so desperately want this that they believe it must be possible, but the very nature of DRM is that it is diametrically opposed to interoperability.
What’s most infuriating is how the mainstream media plays along with the entertainment industry, parroting their calls for nonsensical “DRM interoperability” as though it’s all perfectly reasonable.
Calling for “interoperability” without any practical suggestion as to how it could be achieved is just an empty platitude. It’s like demanding “a cheap source of energy” or “a cure for cancer”. But unlike the energy problem or cancer, digital media interoperability is not an intractable problem. There’s an obvious solution staring everyone in the face.