February 6, 2007  ·  Lessig

The Net’s ablaze with talk about Steve Job’s call for the end of DRM for music. That is really fantastic news and contrary to what many of us had believed he believed. For one feature (from Apple’s perspective) of DRM is that it ties iTunes to Apple devices. No DRM would end that tie as well.

So bravo to Apple and Steve Jobs. About this I am happy to be proven wrong. But then here’s a simple next step: There are artists on iTunes whose creative work is Creative Commons licensed. Colin Mutchler is one. When his stuff first went into iTunes, he requested the DRM be turned off. The request was refused. But if no-DRM is Apple’s preferred policy, then let them begin here.

  • Todd Troxell

    SJ’s post seemed more like a poor excuse to me. I hope I’m wrong.

  • http://copyrightings.blogspot.com Kevin

    As much as I’d like to believe Jobs is genuine, his motivation seems to be anything but. iTunes is receiving a lot of heat in Europe (which he mentions explicitly in the end) and he seems to want placate the worried legislators there.

    I agree letting Colin sell his music sans-DRM would be a good first step, but how about opening the iPhone to third-party apps? Jobs is a control freak (for better at times, worse at others) and DRM gives him a modicum of control over his music hardware.

  • icecow

    I’m thinking along the same lines as Kevin.

    It’s like saying when hell freezes over I’ll be a hero..that should be thanked, until then–and X amount of time will lapse–I’ll be a hero..that makes a lot of money for my power trip.

    Or maybe it’s less sinister and he’d love for it to happen, but until then itunes is legit, the irony.

    Either way it was a smart thing to say.

  • Evan M
  • Another Kevin

    Unlike Kevin above, I’m willing to presume good will on Jobs’s part when he characterizes DRM as an experiment that failed. I strongly suspect that Apple is at least in part captive to the big labels on the issue; clearly, they don’t want music from their independent competitors releases in a more usable form than theirs. I suspect that they are refusing to sell to the digital resellers unless DRM is applied across the board – even to competititors’ properties. Oh wait, the major labels would never do that because it would be restraint of trade. Yet another example of DRM as “antitrust-worthy” computing?

  • http://www.law.ed.ac.uk/ahrc/ Nicolas Jondet

    Apple�s change of heart on DRMs seems, indeed, almost too good to be true. From a French perspective it is interesting to note that the new French copyright law (known as the Dadvsi law http://www.law.ed.ac.uk/ahrc/script-ed/vol3-4/jondet.asp) which imposes an interoperability requirement for DRMs was described by Apple as �state-sponsored piracy.� Apple fought hard against this law which creates a new body to implement this interoperability requirement.
    Maybe Apple has now decided that it is better to go DRM-free rather than face regulatory bodies in France, Germany, Norway or elsewhere. Besides, Apple makes money by selling iPods not by selling music. Apple does not need DRMs to sell iPods (if anything, they might have deterred some customers from buying iPods). Why then should Apple take the risk to face litigation and huge fines by using DRMs?

  • a random John

    I’m guessing that he would be willing to drop DRM but would continue to sell music exclusively in the AAC format. Are there any other hardware players out there that support it? Removing DRM without selling in a more widely compatible format would not do much to erode Apple’s lock-in.

    Interestingly any music purchased on iTunes will play on any iPod. It is iTunes software playback that the DRM applies to. Also note that Apple has stopped some efforts to make it easy to remove music from an iPod such as the iPod Download pluggin. Their software provides a one way flow of music: iTMS -> iTunes -> iPod.

    The combination of the use of AAC and the inability for most users to download from the iPod already provides Apple with what they want. DRM on top of that is overkill in Apples view.

  • Jeremy

    I’m rather less sanguine about Jobs’s letter than Prof. Lessig, and more in line with the early commenters on this post. The way I read Jobs, he’s simply making an argument that FairPlay isn’t cause for the antitrust concerns threatening Apple in Europe (both because there is competition from other proprietary platforms by Sony and Microsoft, and because most music on portable devices isn’t DRM-protected anyway), and that even if there was cause for such concern, licensing the FairPlay standard is a worse solution than doing away with DRM altogether. This strikes me as a litigation posture, not a policy argument.

    The structure of the letter is classic straw-manning; when you really look at it it’s not arguing for the abolition of DRM so much as against FairPlay licensing. As such, it appears to be primarily a ploy to lay any antitrust concerns at the feet of the Big 4 music companies, rather than Apple. His argument that the demands of the Big 4 require a closed, proprietary standard that cannot be licensed without compromising the standard’s integrity is both a defense of Apple’s current business practices and a plea to regulators to go after the bigger bad guy (a plea made explicit in the last three paragraphs of his letter).

    I might change be less skeptical if, as Prof. Lessig suggests, Apple removes DRM from Creative Commons-licensed works, but I don’t count on Jobs to put his shareholders’ money where his mouth is–indeed, one could argue given his fiduciary duties that he shouldn’t do so unless legally compelled. As it stands now, I think Jobs’s position on the abolition of DRM is nothing but a red herring–but one that appears to have succeeded in its purpose of seizing public attention and changing the terms of the debate.

  • Zeke

    To a random John:

    Actually quite a few digital players support (non-DRMed) AAC files … including the MS Zune, for example, as well as many cell phone players.

  • Joe Buck

    While I suspect that the skeptics are right, that the audience for this note are the European regulators pressuring Apple to open up iTunes, it might not matter: Jobs’ comment can be used as a wedge to push Apple in the right direction. Apple can prove its sincerity by allowing bands that request it, and have the legal right to do so, to make DRM-free music available on iTunes. If Apple responds that the big four record labels insist that Apple not provide services that smaller record labels want, we then have an antitrust issue: a cabal of industry leaders conspiring to cut out the little guys.

  • Chris S

    If Apple responds that the big four record labels insist that Apple not provide services that smaller record labels want, we then have an antitrust issue: a cabal of industry leaders conspiring to cut out the little guys.

    …and Jobs would much prefer that Apple stay out of this fight. By forcing regulators and the market to focus on the parties that insisted on the limitations, Apple doesn’t have to take on the role of “recording industry annoyer” for itself. That strikes me as fair – the industry wants one thing, the market wants another, so let the market decide – at which point Apple can jump in with the new solution.

    It’s possible that in the short-term, its not technically feasible to have the iTMS sell only some stuff without Fairplay, especially if it is deeply embedded in many layers of the software and service. And if Jobs thinks things will change before long, its a sensible business decision to wait for the change, and then switch everything all at once.

  • Tim

    I tend to accept Job’s comments at face value. I believe that when Apple negotiated with the record companies, Apple was opposed to DRM, but the record companies forced Apple to accept it.

    The argument that some seem to be making is that since Apple has benefitted from DRM, Steve Jobs must be lying when he says he is against it. That arguement is flawed. First, who is to say that Apple would not benefit even more without DRM? Second, don’t over look the possibility of idealism. Not everyone is strictly out for themselves.

  • Paul Davis

    Jobs specifically did not say that no-DRM is their preferred policy. He said that if the major labels were to drop their requirement for it, *then* Apple would drop DRM in a heartbeat. This means that a bunch of independent artists saying “Over here! Over here! Release my stuff without DRM” is really orthogonal to Jobs’ comments. Jobs didn’t say “We’d like to move closer to DRM-free”, he said “We use DRM because the major labels told us we had to, and we will continue to do so across the entire store until they change their requirements”.

  • http://www.cathygellis.com Cathy

    What is the legal mechanism that would allow iTunes to keep DRM on any songs where the copyright holder asked it to be turned off? I can’t see how such a refusal could be legally kosher, unless it’s a matter of leverage, where iTunes says “we’ll only do you the favor of selling your songs if we get to slap DRM on it; otherwise, good luck getting your music sold.” Of course, if that’s what’s going on, it would seem to raise a whole host of other (particularly anti-competitive) legal issues.

  • Patty Thomas

    I don’t think the CC music with DRM on it is a matter of legally – it’s probably a matter of simplicity. The app is easier to code, test, and maintain without a bunch of special cases. Whenever you add complexity, you are also going to add a layer of human process, too.

    so say it takes an extra engineer to implement non-DRM (providing you don’t want your innovator writing easy code instead of adding new features). That engineer will be asking questions to get up to speed, and require more signalling with others to integrate the code. He’ll take up more of the project manager’s time. It’ll require an extra test procedure for quality control, and perhaps a person devoted to testing that feature.

    Then you have the store processing side of things. You have to set up an extra procedure to handle the encoding upon receiving new music from the record company. This isn’t a high level job, maybe with high turnover, so you’d probably have to train everyone on that staff to watch for these things, instead of being on autopilot mode. Most people will likely make some mistakes, because they more often than not encode the other way most of the time. So add another bit of quality control, or if mistakes get made, more support staff to deal with the angry record companies or customers.

    Then think about the fact that iTunes comes out with a new version once a month or so, and also releases international versions at a fair pace, though that has slowed down. Oh, add another quality assurance tester for international.

    So now you’ve added complexity to at least 50 people’s jobs, created new ones, without any added revenue to Apple. And they’re not making oodles of money off iTunes. (iPod revenue and staff would be in a separate accounting division.)

    Then there’s the Apple corporate hiring culture, which is to avoid adding people whenever possible, because more people means more process and complexity, and takes longer to get anything done. And is harder to undo if you make a mistake about staffing up a new feature/division. Say they did all this, then decided to get rid of DRM. They’d have extra people…

    So basically, by adding non-DRM music, you increase the complexity, increase failure, increase time for new features to get to market, and decrease revenue, for something that most people don’t care about. Most people just want their stuff to sync after they plug in the iPod. How it gets there doesn’t matter. But they’ll get mad if it starts being not so seamless and breaks more often.

    That’s no reason not to do it. But it’s unlikely to be a legal reason, or a negotiation thing with the indies. It’s more likely that Apple just prefers simple solutions.

    And so it really would be easier if there weren’t DRM. Think about all those international versions, think about revving the software every month. If Apple didn’t have to add DRM, everything would turn over much more quickly.

  • http://www.cathygellis.com Cathy

    OK, maybe that’s why Apple doesn’t want to un-DRM the music. But I’m not sure copyright law gives them that choice. They sell the songs with the permission of the copyright holder, so I don’t see how they get to unilaterally overrule the terms by which the copyright holder gives them permission to do it (apart from bargaining power, but, again, I think that’s a problematic stance for Apple to take).

  • Jonathan Zetlaoui

    Fred Amoroso, CEO & President of Macrovision Corporation – a company that has been in the DRM industry since (I far as I remember) the copy-protected video tapes, answers Job’s letter on Macrovision website.

    Needless to say, he is very favorable to DRM. However, even tough he sings the old “DRM-is-needed-to-prevent-piracy-and-ensure-rightowners-are-compensated” tune, I think he has a point when he says that DRM can enables new types of media consumption that are simply not possible in the “analog” world. I’m thinking here about, e.g., music or video rental – in which models the consumer does not own but rents the content. Other models, such as “right-locker” architectures (described, I believe, in “Code”), which do bring a true value to customers, are other such examples.

    For discussing this in the past with him, I know M. Lessig will disagree (or has he changed his mind since then?). Yet, allow me to formulate this proposition, which should reconciliate M. Jobs and M. Amoroso:
    - DRM are useless (and proved so) for protecting content sold under the standard “ownership model” (where the end user has the right to use the content for as long and as frequently as they wish)
    - DRM are necessary to enable new distribution and usage models (where the end user do not “own” the content

  • DB

    Wow, no offence Patty, but I found your excuses for Apple to be utter nonsense. I am a programmer and I have programmed for the Mac, and trust me: it would be absolutely trivial for a company like Apple to remove DRM from any tracks they wish to. It would not create a “bunch of special cases”: it creates only ONE additional case. Either the track is labelled ‘Apply DRM’ or it isn’t. I mean, all we’re talking about here is an IF-THEN statement. The gruntwork is just finding all the places in the code where the DRM is accessed and inserting this IF-THEN statement. It’s work. It doesn’t take five minutes. But any programmer will tell you that this is not a significant challenge in any way.

    My guess is biggest task (BY FAR, I mean BY LEAPS AND BOUNDS) in removing DRM from some tracks, is just identifying which tracks those should be. There are millions and millions of songs. It’s no big deal at all (really!) to add a bit to each of them to track whether to DRM them and to write to code to handle this. But then where do you get the data to put in that field? This would involve some sizeable gruntwork, enough so that it would be very advantageous to design a let-the-artist-flip-their-own-DRM-bit web interface.

    In any case, this kind of administrative work would NOT be a significant hurdle for Apple.

    But they aren’t going add ANYTHING to the whole system to meet the request of a single artist. I forgive them that. But that is all. I do not forgive them for not having a method implemented to let the artist choose the DRM status of their song in general, because there is simply no excuse for that. And if you haven’t implemented now, for whatever reason, there is still no excuse for not implementing it tomorrow. Especially if you claim that you would prefer to sell tracks without DRM.

    Nobody is going to believe that you want to give away all your clothing when somebody is standing there asking for your socks and you say nothing to them.

    Steve Jobs has the technological capability to implement this with relative ease, and he claims he would prefer to sell DRM-free music. Nobody should believe a word of it (and he shouldn’t EXPECT anyone to believe a word of it) until he starts facilitating the removal of DRM from tracks where nobody has asked for it to be applied.

    Right now, we can consider this a grace period. But if Apple does NOT start releasing some DRM-free tracks, and soon, then logic DICTATES ABSOLUTELY that Steve Jobs was LYING when expressed a wish to do so.

  • http://www.publishmymusic.com Dave Barnes

    I wonder if the entire trend is going towards musicians moving away from DRM and major publishers. Sites like publishmymusic.com are coming around giving musicians an alternative.