DRM threatens 'fair use' rights

In his most recent rant about DRM (Jobs iPod Hi-Fi: Home stereo reinvented? Or load of HorseCRAP?), David Berlind once again reminds us why we should rail against Apple and its iTunes Music Service. The main thrust of his post is that Apple has not made its own DRM technology (known as FairPlay) available to other media player manufacturers -- and he judges that as unfair. The threat is not the manner in which one vendor or another implements DRM. Oddly, David doesn't ask himself why Apple has made that decision -- or if it is a wise decision from a business perspective.

Of course, if Apple's iPod was not the number-one selling line of media players -- and by a wide margin -- David might be raising a different concern -- that the only other DRM technology in wide use is from our other favorite de-facto monopoly, namely Microsoft.

Of course, the reason why Apple does not want to license its FairPlay technology is that Apple is a hardware company. They make their margins on hardware -- which just happens to run Apple's proprietary software -- and they only make a profit if people are buying iPod's instead of somebody else's media player. Microsoft, on the other hand, is a software company. They only make money if everyone else is using their duly licensed software. (Microsoft's version of the old adage ... "take a loss and make it up on volume.") One should also keep in mind that the ONLY reason Microsoft has licensed PlaysForSure so far and wide is that they are playing catch-up in this market.

Apple made a conscious decision years ago not to attempt to compete in the commodity hardware market. Instead, they decided to select niche markets where they could excel -- and thus command premium prices for their wares. Which of these two business models is better for the consumer is, and always has been, a matter of perspective.

As I pointed out in recent blog of my own (Protecting copyright in an academic environment), the threat is not the manner in which one vendor or another implements DRM -- or even whether they make it available to other potential licensees. The real threat is DRM itself.

David and his colleagues seem to have overlooked the greatest single threat posed by DRM. DRM is purportedly intended to protect copyrights, but the Digital Millennium Copyright Act (DCMA) make it illegal to bypass DRM for any reason, even if the purpose of such bypass is within the law. I speak now of the "fair use" terms of U.S. Copyright Law (found in U.S. Code, Title 17, section 107). Under the terms of "fair use", copying is permitted: "... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research ..."

Under the DMCA, DRM-protected materials are suddenly 'off-limits' since "fair use" is no longer possible if ownership of the tools which would make "fair use" possible is itself punishable as a felony -- even if no such copyright infringement has actually taken place. In effect, DRM becomes not just an inconvenience to consumers but a potentially serious threat to a Free Press. Without the legal right to share portions of protected material the opportunity for criticism or comment is lost -- and potentially the right of redress of grievances.

These once-cherished rights could easily be threatened in the name of protection of corporate profits.

Lest we forget, Apple is number one in this market because consumers have deemed the iPod to be the best product of its type on the market today. The same holds true of Microsoft Windows in its market. Let's not confuse the profit-driven actions of corporate entities with any kind of moral superiority of one approach over another. Instead, let's replace DRM with something which protects both copyrights and "fair use."