With Microsoft sucked into a DRM cat-n-mouse deathmatch, is Zune doomed?

While I was away on vacation, I caught George Ou's blog on how Microsoft's digital rights management (DRM) copy protection technology (currently, the lynch-pin to its PlaysForSure ecosystem, and undoubtedly a foundational piece to its new iPod-killing Zune initiative) had been rendered useless by developers of the FairUse4WM "utility." FairUse4M strips copy-protected Windows Media content of its copy protection and  could bring down a very large house of cards at Microsoft.

Bear in mind that using something like FairUse4WM is a violation of the DRM circumvention provisions [sic] in the Digital Millennium Copyright Act (punishable by fines, imprisonment, or both).  Apple has masterfully cornered the DRM market... and Microsoft wants in... Also, many intellectual property lawyers will tell you that, contrary to popular belief, being able to make full-blown copies of the content you've licensed (and that's what you do when you buy a CD) is not an issue of fair use.  At least as far as the commonly accepted definition of fair use is concerned. So the utility's name is a bit of a misnomer (although I can think of no better name).

But none of that is going to stop people from using it which is why the minute I saw this story, I envisioned the near war room conditions that were scrambled together in Redmond in hopes of limiting the damage. One only need look at Apple's success over the last few years to understand why the company with the biggest key to the DRM kingdom wins. And by wins, I means wins everything. 

Apple's DRM -- called FairPlay (but I call it "UnFairPlay") -- is the stuff that the walls surrounding the garden containing the iTunes software, iTunes Music Store (iTMS), and iPod troika are made of.  It's a razors and blades strategy that's just a bit different from others like it in that the blades (the playback devices) are significantly more expensive than the razors (songs, videos, etc.) and the razors last forever (or, at least they should).  Once you're in Apple's walled-garden, FairPlay makes it relatively impossible to get out (without huge sacrifice), thus ensuring a long term legacy of profits for Apple.  Owners of content purchased at the iTMS must forever buy devices and software manufactured or sanctioned by Apple to play that content back and those devices and software are incapable of playing back protected content from sources like Yahoo, Napster, or whatever Microsoft comes up with for Zune. In other words, you either buy original media (eg: a full-blown CD) from your favorite retailer (Amazon, F.Y.E., etc.) and rip it (a painfully friction-laden process) or you take the path of least resistance by buying it from iTMS. 

Apple has masterfully cornered the DRM market (even though most people don't realize that there's a market for DRM in which they're participating) and Microsoft wants in because every day that goes by where another FairPlay-protected piece of content enters the market and a corresponding one protected with Microsoft's DRM doesn't is another day that seals the long term fate of both companies. Good for Apple. Not so good for Microsoft.  The PlaysForSure ecosystem was designed to do to FairPlay what Windows did to the Mac: let a commoditizing bloodbath between technology licensees drive down prices and drive up the marketshare of the underlying technology.  It didn't work and now, with Zune (where Microsoft will be making the hardware), the company is back to square one and looking to take on Apple on a turf that Apple knows best.

Without a bulletproof DRM scheme though, Zune itself could be in trouble. If I'm any one of the content providers (movies studios, record labels, etc.) thinking about entering the Zune ecosystem, then I've already placed my call to Microsoft looking for assurances that the FairUse4WM hack is nothing more than a bump in the road.  But, if after receiving those assurances, I read Bruce Schneier's most recent blog, I would have a very unsettled feeling in my stomach right about now.  Wrote Schneier:

Last week, a hacker developed an application called FairUse4WM that strips the copy protection from Windows Media DRM 10 and 11 files.....So Microsoft wasted no time; it issued a patch three days after learning about the hack.....It should surprise no one that the system didn't stay patched for long. FairUse4WM 1.2 gets around Microsoft's patch, and also circumvents the copy protection in Windows Media DRM 9 and 11beta2 files....That was Saturday. Any guess on how long it will take Microsoft to patch Media Player once again? And then how long before the FairUse4WM people update their own software?...Certainly much less time than it will take Microsoft and the recording industry to realize they're playing a losing game, and that trying to make digital files uncopyable is like trying to make water not wet.

"Make water not wet." I wish I had a way with words like that because that's exactly what this is about.  Actually, Schneier does an even better job putting the lunacy of DRM from the content consuming side in perspective:

....this isn't a "vulnerability" in the normal sense of the word: digital rights management is not a feature that users want. Being able to remove copy protection is a good thing for some users, and completely irrelevant for everyone else. No user is ever going to say: "Oh no. I can now play the music I bought for my computer in my car. I must install a patch so I can't do that anymore."

As hard as I've tried, in all my spewing about DRM (otherwise known as CRAP — Cancellation, Restriction, And Punishment), I've never been able to so clearly articulate its unique selling proposition like that. Well-said Bruce.  And, while we're on the subject of patching, this is yet another problem with DRM.  In the futile attempt to stay one step ahead of DRM hackers like the developers of FairUse4M, there's only so much patching you can do until you have to rewire the entire system altogether making backwards compatibility a pipe dream.  In other words, something in the playback chain ends up breaking so that you're either forced to buy new devices, or forced to re-buy your content.  Need proof? Read about one of the first DRM train-wrecks I started to keep track of.