Opinion: Apple's Copy Protection Isn't Just Bad For Consumers, It's Bad For Business

It's not just Warner, either. Through 2005 and 2006, Sony BMG music faced global lawsuits after it deployed millions of CDs infected with a crippling anti-copying technology called XCP that used a rootkit to disguise itself. Researchers who decompiled XCP noted that it contained code from a program that is used to circumvent iTunes copy-restriction. Many have suggested that Sony chose its cowboy DRM vendors based on their willingness to put Sony's music on Apple's players without going through the iTunes Music Store.

European nations such as France, Norway, and Denmark have announced regulatory and lawmaking interventions in the iTunes business model, often with the quiet approval of the record companies, who hope to force Apple to open iTunes to other DRM vendors.

Is that the answer, then? Standardized crippleware that can be implemented by all comers? There are lots of these efforts under way, from the well-known (Blu-Ray, HD-DVD) to the obscure (Coral, the Broadcast Flag, DVB-CPCM). These specifications are hammered out by multiparty consortia, with oversight from the entertainment industry. I've attended my share of these meetings and "oversight" is putting it mildly--the entertainment industry runs those consortia, shouting where necessary, threatening to withhold content from the platform, even (in the case of the Broadcast Flag), threatening to complain to powerful congressional chairmen.

And therein lies the rub. Steve Jobs really doesn't care how many CPUs you play an iTune on, or whether you burn a playlist seven or 10 times. He wants you to get locked into iPods, not fall prey to some pie-in-the-sky pipe-dream where "consumers" pay for "features" like pausing a track or playing it in a different country. Steve Jobs's crippleware exists only to lure the entertainment industry in, not to control you in any meaningful way.

But where you have a multiparty negotiation, you have a much weaker bargaining position. At the Broadcast Flag meetings in Hollywood a couple years ago, the studios caused a near-meltdown by announcing, four-fifths of the way through the process, that they weren't interested in ever approving single-vendor DRMs from Microsoft or Philips, but would welcome the giant, brawling consortia like 5C and 4C, whom they could play like a fiddle.

Look at Blu-Ray and DVD-HD, where you have two competing consortia, for a view of how bad this can get. These two consortia have spent the past several years locked in a race to the bottom, competing to see who could announce the least-capable device and therefore command the lion's share of Hollywood films licensed for its platform. The battle came to an end when Blu-Ray added the most comprehensively dumb feature to its spec: region-coding, something that everyone agreed had been a miserable failure with old, standard DVDs.

Ironically, these consortia DRM aren't any better for the entertainment industry than the single-vendor systems are. A DRM designed by the studios is a DRM that is destined to fail. This is an industry that believes in suing its customers. That believes in frisking moviegoers and patrolling the aisles with infra-red goggles. That characterized skipping commercials on TV as theft (though "a certain amount of bathroom activity would be tolerated"). That believed that the VCR was "the Boston Strangler of the American film industry." No matter how many smart, savvy execs there are working within the entertainment juggernauts, the organizations themselves are constitutionally incapable of designing a distribution platform that anyone actually wants to buy.

So they sink their money and time into these dead-on-arrival systems, and lose money (at least Steve Jobs cuts them the occasional check). And those customers who get suckered into buying their devices end up with the consumer electronics equivalent of toxic waste, crud that treats its owner as a suspect and only grudgingly allows the least functionality.

There's no good answer to designing a "good DRM." Or rather, no DRM is good DRM. iTunes is instructive again in this regard: Apple sold a billion tracks in three years in spite of its DRM, not because of it. No Apple customer bought an iTune because of the DRM. What's more, every track in the iTunes music store can be downloaded for free from P2P networks. Apple proves that you can sell music without DRM all day long -- all adding DRM to Apple's music does is give Apple the ability to abuse its customers and its partners from the labels.

That's a lesson Yahoo Music has taken to heart

Cory Doctorow is co-editor of the Boing Boing blog, as well as a journalist, Internet activist, and science fiction writer.

(Rob Preston will return next issue.)