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ATPM 13.05
May 2007


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by Wes Meltzer,

Always Use Digital Rights Protection

In March, Steve Jobs wrote publicly that he wanted to end digital rights management. It was a doozy of a public letter, too, in which he lashed out at the record labels’ insistence on treating their users like they don’t deserve the music that they own.

Now, I’d recommend reading the rest of my column anyway (and not just because it is the most insightful piece of writing you will ever read!)—but what’s worth noting is the skepticism from people like The Inquirer’s Charlie Demerjian, TidBITS’ Adam Engst, and John Lech Johansen, among others. I’m not really in the habit of taking Steve Jobs at his word, but when you publish an open letter on a subject, usually it means something.

That sound you hear is the sound of the other shoe dropping.

On Monday, April 2, the day after April Fool’s Day, Apple announced that they had reached a deal with EMI to sell music without DRM through the iTunes Music Store. Tracks with 256 kilobits-per-second encoding, rather than the standard 128Kbit/s, will be sold as AAC tracks without DRM for $1.29 per track, starting this month. Ars Technica has the best recap of the technical details, for obvious reasons.

Yes, that’s right. You probably already knew that, but that depends on where this column falls in the order that the issue of ATPM was put together, and on how slavishly you read tech blogs or watch CNN Headline News.

So I guess Steve Jobs really did put his money where his mouth is, which is something a lot of commentators didn’t expect. You might call this column “Mr. Jobs, Tear Down This Wall, Part II.”

The BBC’s Bill Thompson did not believe that Steve Jobs would agree to sell un-DRM-ed music, and he was pretty vocal about it, in a column posted in February. It was called “Why I don’t believe Steve Jobs.” But it’s indisputable that Apple did, in fact, announce that they will offer music without DRM from the EMI catalogue. What does he have to say?

He has proved me wrong by opening up the iTunes store to non-DRM music, and showed that I had seriously underestimated his business acumen.

He may even have done it in a way which avoids the fate of being “crushed under foot by those who really understand the music business and didn’t sell their souls to the record companies back in the days when they believed in DRM” that I predicted for him in my February column.


EMI and Apple’s action could mark the start of the endgame for music DRM, a recognition that it can’t work and won’t work, and I approve of this.

In an interoperable world of open music we can leave it to the market to decide which player, which store and which bands make it big, and that is a good thing.

That sounds like gracious acknowledgment of past skepticism, to me. Thompson isn’t afraid to admit that he was wrong.

Less gracious was Cory Doctorow of Boing Boing. Of all of the skeptics about Apple’s moves on DRM, I don’t believe anyone was more skeptical than Doctorow. He’s got a long and proud record of opposing digital lock-ins of all kinds, and he and I happen to agree on the Digital Millennium Copyright Act (bad) and DRM (bad). But he wrote an article for Salon in February accusing Steve Jobs of not walking the walk when it came to his “Thoughts on Music.” Then, without mentioning this article, after the EMI announcement, he posted a blog entry containing the line, “I could not be happier right now.” Talk about a turnabout! John Gruber makes a good point by nominating Doctorow for his Jackass of the Week award.

Less gracious than even Doctorow is the Fast Company blog, which, having at least entertained the idea that Jobs could be saying what he believes in February, then pisses all over the announcement this month. I don’t understand the logic when blogger Alex Pasquariello writes:

[T]his is all smoke and mirrors—Jobs and EMI are simply selling you the rights they took from you in the first place… Jobs’ recent rants against DRM are a ploy to distract us from the increasing number of legal challenges to its business practices, especially in Europe.

Huh? I understand that the European Commission doesn’t understand why Apple’s pricing for iTunes tracks varies from country to country, but I’ve never understood why that’s antitrust. McDonald’s charges different prices for the same hamburger in different countries; Apple has prices in their conventional nice, neat marketing numbers for each currency where they sell music, so that a track in the US is 99 cents, in the U.K. it’s 79p (about $1.60), and in the EU it’s 99 eurocents (about $1.35). I suppose Apple could charge 89 eurocents and 49p, but at some point it ends up being an argument about purchasing price parity and the Economist’s Big Mac Index.

Anyway, I am unclear why the DRM announcement would do anything to deter EC regulators. C’mon, guys. Thankfully, I don’t have to do all the heavy lifting here: MacUser’s Dan Moren gives Pasquaiello a good, stiff fisking by attempting to figure out what this means.

Similarly curious is Engadget’s response to the announcement:

Asking customers to pay 30% more for no DRM and a higher bitrate is a distraction, a parlor trick to take our attention away from the philosophical issue: EMI is still selling DRMed music.

At least they make sense; their objection is that Apple is charging more for these un-DRM-ed tracks than for the standard DRM tracks. I say, $1.29 a track is still a better deal than a whole album, considering the $16 I paid for the last CD I bought, unless there are more than 12 tracks on that CD. But if nothing else you would think they would be a little more pleased.

But not everyone was so curmudgeonly in their praise for what seems to be a genuinely good move for the 99 percent of us who don’t want DRM on our iPods.

David Pogue, for instance, shows a little understanding that Engadget didn’t: not only does he call this “an absolutely huge, industry-shaking development that I never in a million years would have imagined,” he notes that the extra 30 cents is in essence a piracy tax that EMI and Apple levying against customers. Sure, I know that All Taxes Are Evil, but I think that’s a reasonable perspective to take. He writes further:

Whatever happened to the head-in-the-sand recording executives who are terrified of the Internet and at war with their own customers?

Somebody over at EMI, no doubt helped along with some persuasive mojo from Steve Jobs, recognized that copy-protecting your legitimately sold songs doesn’t inconvenience the music pirates in the least. The only people it bothers are the law-abiding customers who pay for their music.

Congratulations all around on this triumph of common sense.

The Economist took an even stronger rhetorical approach than Pogue on DRM, generalizing from the Audio Home Recording Act of 1992 and a recent Santa Clara (Calif.) Superior Court decision about DVD copying to legal CD ripping and the EMI-Apple deal. The magazine writes:

[M]usic executives have come to realise that DRM simply doesn’t work. It is supposed to stop unauthorised copying, but no copy-protection system has yet been devised that cannot be easily defeated. All it does is make life difficult for paying customers, while having little or no effect on clandestine copying plants that churn out pirate copies.

Om Malik (at GigaOm) says that this is a victory for Apple, because Jobs called the record industry’s bluff and now the other labels have to play the game or go home. Ars Technica seconds this in two looks back at the announcement: In their Infinite Loop blog, Charles Jade says the EMI announcement may have killed the music labels’ desire for a subscription model once and for all, and Iljitsch van Beijnum notes that the record labels got the old Weimar knife-in-the-back from EMI, since this was all EMI’s idea.

Most important of all, Rui Carmo points out the caveat I guess we’ve all known all along: Some people won’t ever be happy with what Apple does. It will never be enough. (Viz., Cory Doctorow.)

There are a couple of other distinctly original takes on the topic that I saw while I was researching this month’s column, and I thought I’d share ’em with you before we move on to other topics. I will pass them along without comment, because I don’t know enough to evaluate them:

On that note, ladies and gentlemen, I’m going to wish you a terrific May. I’d also like to note that I’ll be taking a hiatus from June’s issue, due to some major real-world projects that will require many man-hours in May. We’ll be back in July!

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Reader Comments (2)

David Barry · May 2, 2007 - 06:03 EST #1
You mention that the EU have a complaint about iTunes pricing and you dont see its relevance to the DRM controversy. You are right. Its not relevant at all. The EU was set up to make it as easy to trade between EU member states as it is in the US to trade between individual sates in the US. Their objection to current iTunes practice is that prices vary between countries in the EU, and (this is the important bit) if you are resident in one EU country you cannot buy from the itunes store for another EU country. They want us to be able to buy from any iTunes store. And by the way the UK is a full member of the EU but is not a user of the Euro as not all EU members are, But the EU wouldnt mind what currency people used providing they were free to go for what they saw as the lowest price. I hope this helps. (I happen to be based in the UK which is why I know this)
Mr. Peabody · August 14, 2007 - 00:13 EST #2
Even this well done article skips any clue as to why Stevo utilizes DRM at all - It's 'cause there would be no legal sale of music or video content without it, and in case you still don't get it, that means that none [except EMI to date] of the labels and/or producers will allow their content to be sold on iTunes or anywhere else without it. Uncle Steve's open letter spelled that out, and when EMI found the courage to break ranks Sir Steve wasted no time in backing up his open stand on DRM by un-DRMing the only label that would allow him to.

Anyone who has ever thought that the Jobs-meister was all about using DRM to "lock" us into or out of any ability to choose our hardware of choice were just overcome by Microsoft propoganda being spewed about by the too-numerous-to-count MS "partners".

Whatever else Jobs-and-company's intentions were from the outset, it was clear to me that they [Apple] simply wanted get the attention of the public firmly on them [Apple] to remind people that they really do not have to use MS Windows if they didn't want to. While I'm sure that Apple is certainly not losing money on iTMS, I doubt that it is single handedly keeping the company afloat either.

I still sit in dazed wonderment as I read articles complaining about how a consumer can only use iPods with iTunes, and I read these articles as I plug my obsolete Rio Player into my iTunes and manage its music files directly inside of iTunes. And I've read these articles on popular blogs as recently as two weeks ago - give me a break folks. The iTunes Music Store is one of the most ingenious ad campaigns Apple has ever come up with, and prior to the re-arrival of one Steven P. Jobs, advertising in any real way was something that Apple just couldn't seem to pull off.

And all of the EU hoopla? - Can you tell what I'm going to say next? The different pricing for different countries is about the hoops that Apple is compelled to jump through by the music labels and even the EU itself in order to even legally sell/distribute the music in those countries. Are we seeing any light here at all?

If Apple had its way it would sell non-DRMed music all over the planet for .99 cents or the exchange equivalent - why? Because Apple is using the iTMS to get people to see them as the legitimate computer manufacturer, and a truely inovative one at that, that they are. With iTMS Apple has been doing nothing more than showing off their unprecedented ability to inovate with computing technologies in a way that offers end users conveniences that were only being talked about before iTMS - And now that Apple's done it, everybody's racing to get a piece.

The motivation for iTMS is really much more straight forward than anybody wants to see it - and of course, therein lies much of its genious.

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