The DRM Train Wreck on National TV

by on November 16, 2006 · 32 comments

This is brutal:

The hosts seem surprised that you can’t email or download music from a server. And they’re not impressed with the “clunky” design of the Zune. “Why don’t they get some decent design people?” Miles O’Brien wonders.

From my perspective, though, the most interesting comment was when Andrew Ross Sorkin emphasizes that “If you have bought songs on iTunes, on Apple for example, it doesn’t play here. And even worse, if you bought songs on Napster or some of the former Microsoft-compliant devices, it also doesn’t work here. So you have to start your library all over again, unless you have it all on CD to begin with.”


I spent an afternoon the week of the Sklyarov arrest passing out flyers about the DMCA to my befuddled fellow students. So I take a certain satisfaction in seeing the problems we warned about five years ago being discussed on national TV. In 2001, explaining the DMCA required me to speak in mostly hypothetical terms. I got a lot of blank stares.

Now when I say that DRM is what prevents you from playing your iTunes songs on a non-Apple MP3 player, anyone who pays any attention to the technology industry will immediately know what I’m talking about. Of course, there’s still a lot of education to be done to help more people connect the dots from iPod compatibility problems to the DMCA. But at least it’s no longer a big challenge to explain what the issue is.

Hat tip to iLounge, which also has a clip of less-than-glowing coverage on NBC’s Today Show.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    We could make a player that was well designed and behaved sensibly, but we wouldn’t be able to sell it to you.

    So, what we’ll do is waste billions of dollars deliberately creating fundamentally farced up products such that eventually you’ll get so irritated you’ll beg for the abolition of copyright, DMCA, and patents.

    Then we can sell you products you’ll actually want.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    We could make a player that was well designed and behaved sensibly, but we wouldn’t be able to sell it to you.

    So, what we’ll do is waste billions of dollars deliberately creating fundamentally farced up products such that eventually you’ll get so irritated you’ll beg for the abolition of copyright, DMCA, and patents.

    Then we can sell you products you’ll actually want.

  • Law Student

    That wasn’t a train wreck. The commentators didn’t even pick up on Sorkin’s comment about interoperability issues. Sorkin just said it in passing and they moved on to another topic.

  • Law Student

    That wasn’t a train wreck. The commentators didn’t even pick up on Sorkin’s comment about interoperability issues. Sorkin just said it in passing and they moved on to another topic.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    The release of the Zune player resulted in a flurry of news spots. I have been highly critical lack of depth and lack of independence in technological reporting. Normally, most so-called “reporting” on technology has been the regurgitation of a company’s press release. In the Zune case, I (un)fortunately cannot give my usual spiel.

    The release of the Zune player demonstrates that progress has finally been achieved! (At least a micro step) The reporters, for once, have demonstrated analytical independence. Commenting on the Zunes “clunky” design may not be earthshaking, but a least it wasn’t a repeat of the press release. Additionally, there were references that the device is DRM crippled. Hopefully, now that this “door” has been opened, we will see more independent reporting.

  • http://www.blogger.com/profile/14019452 Steve R.

    The release of the Zune player resulted in a flurry of news spots. I have been highly critical lack of depth and lack of independence in technological reporting. Normally, most so-called “reporting” on technology has been the regurgitation of a company’s press release. In the Zune case, I (un)fortunately cannot give my usual spiel.

    The release of the Zune player demonstrates that progress has finally been achieved! (At least a micro step) The reporters, for once, have demonstrated analytical independence. Commenting on the Zunes “clunky” design may not be earthshaking, but a least it wasn’t a repeat of the press release. Additionally, there were references that the device is DRM crippled. Hopefully, now that this “door” has been opened, we will see more independent reporting.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I need to add an obligatory “clarification”. I did not see the Today Show. My comments are a summary of reading/seeing other news sources, such as, CNBC, David Pogue in the NY Times, and John C. Dvorak in PCMagazine.

  • http://www.blogger.com/profile/14019452 Steve R.

    I need to add an obligatory “clarification”. I did not see the Today Show. My comments are a summary of reading/seeing other news sources, such as, CNBC, David Pogue in the NY Times, and John C. Dvorak in PCMagazine.

  • Adam Thierer

    Could it not be the case that THE LACK OF compatibility between players and file formats actually encourages MORE innovation and competition in some ways? I fully know, for example, that it is impossible for me to play my Xbox games on my PlayStation console or a Nintendo console. Would we be better off if perfect compatibility existed among all the games and consoles? Would 3 major gaming platforms exist at all if we could simply play all game titles on just one of those boxes? I doubt it. I think it would be more likely that only one console would prevail and the other two would disappear. And I think that would leave us worse off as a result.

    Same goes for music players, in my opinion. I fully know that I can’t play all my WMA files on an Apple Ipod. But that keeps me (and millions of others) buying non-Apple players. As a result, there’s a fairly diverse and growing market of Apple competitors. Would all those competitors be viable if we could all just play our digital music on an Ipod? Again, I wonder.

    Of course, I acknowledge that I’m ignoring some of the sticky DMCA issues here. But I’m just saying that incompatibility is a fact of life in many fields and that that’s not necessarily always a bad thing. What I’m suggesting is that it could be the case that, at least in some fields, console or device competition might decrease with added interoperability / file compatibility.

  • Adam Thierer

    Could it not be the case that THE LACK OF compatibility between players and file formats actually encourages MORE innovation and competition in some ways? I fully know, for example, that it is impossible for me to play my Xbox games on my PlayStation console or a Nintendo console. Would we be better off if perfect compatibility existed among all the games and consoles? Would 3 major gaming platforms exist at all if we could simply play all game titles on just one of those boxes? I doubt it. I think it would be more likely that only one console would prevail and the other two would disappear. And I think that would leave us worse off as a result.

    Same goes for music players, in my opinion. I fully know that I can’t play all my WMA files on an Apple Ipod. But that keeps me (and millions of others) buying non-Apple players. As a result, there’s a fairly diverse and growing market of Apple competitors. Would all those competitors be viable if we could all just play our digital music on an Ipod? Again, I wonder.

    Of course, I acknowledge that I’m ignoring some of the sticky DMCA issues here. But I’m just saying that incompatibility is a fact of life in many fields and that that’s not necessarily always a bad thing. What I’m suggesting is that it could be the case that, at least in some fields, console or device competition might decrease with added interoperability / file compatibility.

  • http://www.techliberation.com/ Tim Lee

    Adam, I don’t understand why incompatibility would cause more competition. The PC is the best counterexample here, it seems to me. The PC has effectively been an open standard since about 1985. I don’t think you could say there’s been any shortage of innovation or competition there. If the law allowed third parties to reverse-engineer iTunes in order to make their MP3 players compatible, you would probably have a thriving market for iTunes-compatible MP3 players.

    Now, as you point out, there are sometimes reasons it makes good sense to break compatibility. The manufacturers of gaming consoles certainly seem to think there are good reasons for doing so. So I would never say that the law should mandate interoperability. If Microsoft wants to build a product that doesn’t work with its previous product, that’s their right.

    What I object to is when copyright law prohibits third parties from developing software to make different products interoperable. If somebody develops software to make PS3 games play on XBox 360s, or software to play iTunes music on Zunes, I don’t see why that should be against the law. That way Apple and Microsoft can make their products however they like, but if they leave out features consumers want, like iTunes compatibility, third parties can step in and provide it.

  • http://www.techliberation.com/ Tim Lee

    Adam, I don’t understand why incompatibility would cause more competition. The PC is the best counterexample here, it seems to me. The PC has effectively been an open standard since about 1985. I don’t think you could say there’s been any shortage of innovation or competition there. If the law allowed third parties to reverse-engineer iTunes in order to make their MP3 players compatible, you would probably have a thriving market for iTunes-compatible MP3 players.

    Now, as you point out, there are sometimes reasons it makes good sense to break compatibility. The manufacturers of gaming consoles certainly seem to think there are good reasons for doing so. So I would never say that the law should mandate interoperability. If Microsoft wants to build a product that doesn’t work with its previous product, that’s their right.

    What I object to is when copyright law prohibits third parties from developing software to make different products interoperable. If somebody develops software to make PS3 games play on XBox 360s, or software to play iTunes music on Zunes, I don’t see why that should be against the law. That way Apple and Microsoft can make their products however they like, but if they leave out features consumers want, like iTunes compatibility, third parties can step in and provide it.

  • Snorre

    Could it not be the case that THE LACK OF compatibility between players and file formats actually encourages MORE innovation and competition in some ways? I fully know, for example, that it is impossible for me to play my Xbox games on my PlayStation console or a Nintendo console.

    Because it’s not like the incompatability means that gaming companies have to spend more time and money if they want to port their games to more consoles in order to reach more users, right? And then if they don’t think it’s worth it, then screw me if I didn’t buy the “right” console. How on earth is that supposed to benefit users?

  • Snorre

    Could it not be the case that THE LACK OF compatibility between players and file formats actually encourages MORE innovation and competition in some ways? I fully know, for example, that it is impossible for me to play my Xbox games on my PlayStation console or a Nintendo console.

    Because it’s not like the incompatability means that gaming companies have to spend more time and money if they want to port their games to more consoles in order to reach more users, right? And then if they don’t think it’s worth it, then screw me if I didn’t buy the “right” console. How on earth is that supposed to benefit users?

  • http://weblog.ipcentral.info/ Noel Le

    Explain to me how DRM is a trainwreck.

    TIm, patent law, probably more than the DMCA, prevents reverse engineering for interop. But again, this is unclear, and to argue for eliminating software patents on this basis returns to your theme of abolishing anything that does not give you bright lines:)

    Adam is right though, fragmentation of DRM systems does induce competition. Firms then have to compete to create the dominent platform. If you wonder why this is important, then ask yourself why FOSS has not created the dominent music player-service product w/o DRM. They woudln’t be able to capture value by following your proposals Tim. They’d go broke in a heartbeat. I write more to this here:

    Although standardization of DRM systems would result in lower prices for digital goods, this has not occurred as some scholars like Suzanne Scotchmer of Berkeley predict. In Fragmentation versus Standardization in the Market for Digital Rights Management Solutions (July 2006), several rearchers at Law and Economics Consulting Group ask why, and find that fragmentation of DRM solutions arises from market competition and the different uses of DRM that firms leverage. 10. Acknowledging that fragmented DRM schemes not only prevent price reducation but also limit the value of products for consumers, the researchers point out the ease enabled by low switching costs between different proprietary brands. 17. They note that users often buy several different DRM solutions at once, as content owners often release their content in many different formats. 18.

    However, the benefit of fragmented DRM systems arises in competition to create products with greater functionality and value, thus bringing more innovation to market in the long term. 20. Competitors find ways of leveraging existing content sources and perhipherals, such as RealNetwork’s reversing engineering of Apple’s DRM around iTunes. 20. The DMCA may bring restrictions, yet the market has its own correcting balance through increasing the flexibility with which consumers can enjoy content. 23. Finally, as no DRM systems have become industry standard “vendors compete for more content owners by developing secure DRM solutions, and for customers by offering a wider selection of content and more flexibility with the purchased product.” 20.

  • http://weblog.ipcentral.info/ Noel Le

    Explain to me how DRM is a trainwreck.

    TIm, patent law, probably more than the DMCA, prevents reverse engineering for interop. But again, this is unclear, and to argue for eliminating software patents on this basis returns to your theme of abolishing anything that does not give you bright lines:)

    Adam is right though, fragmentation of DRM systems does induce competition. Firms then have to compete to create the dominent platform. If you wonder why this is important, then ask yourself why FOSS has not created the dominent music player-service product w/o DRM. They woudln’t be able to capture value by following your proposals Tim. They’d go broke in a heartbeat. I write more to this here:

    Although standardization of DRM systems would result in lower prices for digital goods, this has not occurred as some scholars like Suzanne Scotchmer of Berkeley predict. In Fragmentation versus Standardization in the Market for Digital Rights Management Solutions (July 2006), several rearchers at Law and Economics Consulting Group ask why, and find that fragmentation of DRM solutions arises from market competition and the different uses of DRM that firms leverage. 10. Acknowledging that fragmented DRM schemes not only prevent price reducation but also limit the value of products for consumers, the researchers point out the ease enabled by low switching costs between different proprietary brands. 17. They note that users often buy several different DRM solutions at once, as content owners often release their content in many different formats. 18.

    However, the benefit of fragmented DRM systems arises in competition to create products with greater functionality and value, thus bringing more innovation to market in the long term. 20. Competitors find ways of leveraging existing content sources and perhipherals, such as RealNetwork’s reversing engineering of Apple’s DRM around iTunes. 20. The DMCA may bring restrictions, yet the market has its own correcting balance through increasing the flexibility with which consumers can enjoy content. 23. Finally, as no DRM systems have become industry standard “vendors compete for more content owners by developing secure DRM solutions, and for customers by offering a wider selection of content and more flexibility with the purchased product.” 20.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Adam: I think you are overlooking a critical point concerning incompatibility. First, there is unintentional incompatibility that can result from independent development of various products. Then there is intentional incompatibility where a company purposely cripples their product. When a company purposely cripples its products this is a disservice to the consumer.

    Or to put it another way, aggravated consumers become innovative to work around these onerous roadblocks. Unfortunately, the content industry seems to think that innovative behavior by consumers to protect their investment is theft.

    As a final point, OK lets assume that incompatible formats promote innovation. You invest $XXX in format “a” (content and hardware). A couple of years go by and format “a” falls out of style and the company goes bankrupt. The DRM/DCMA server goes down, your music vaporizes, and your hardware is now useless. You now have to buy new hardware and re-buy the content using format “b”. But then format “c” comes along and ……

    Would you willingly accept this repetitive monetary loss in the name of free enterprise????

  • http://www.blogger.com/profile/14019452 Steve R.

    Adam: I think you are overlooking a critical point concerning incompatibility. First, there is unintentional incompatibility that can result from independent development of various products. Then there is intentional incompatibility where a company purposely cripples their product. When a company purposely cripples its products this is a disservice to the consumer.

    Or to put it another way, aggravated consumers become innovative to work around these onerous roadblocks. Unfortunately, the content industry seems to think that innovative behavior by consumers to protect their investment is theft.

    As a final point, OK lets assume that incompatible formats promote innovation. You invest $XXX in format “a” (content and hardware). A couple of years go by and format “a” falls out of style and the company goes bankrupt. The DRM/DCMA server goes down, your music vaporizes, and your hardware is now useless. You now have to buy new hardware and re-buy the content using format “b”. But then format “c” comes along and ……

    Would you willingly accept this repetitive monetary loss in the name of free enterprise????

  • http://weblog.ipcentral.info/ Noel Le

    Steve R, your hypothetical is interesting. Yes, thats how things work, and if there’s value in backwards compatibility, then companies will pursue that course.

    Its funny how those who speak of consumer welfare want all of their cake now, without worrying about long term innovation and investment. This assumes something very depressing- that innovation is somehow at its peak, thus society should squeeze as much out of existing innovations as possible by commodotizing it in the name of some weird conception of consumer welfare.

    Consumers benefit from the introduction of new innovations. If you handicap producers, those innovations won’t come to market.

  • http://weblog.ipcentral.info/ Noel Le

    Steve R, your hypothetical is interesting. Yes, thats how things work, and if there’s value in backwards compatibility, then companies will pursue that course.

    Its funny how those who speak of consumer welfare want all of their cake now, without worrying about long term innovation and investment. This assumes something very depressing- that innovation is somehow at its peak, thus society should squeeze as much out of existing innovations as possible by commodotizing it in the name of some weird conception of consumer welfare.

    Consumers benefit from the introduction of new innovations. If you handicap producers, those innovations won’t come to market.

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    TIm, patent law, probably more than the DMCA, prevents reverse engineering for interop. But again, this is unclear, and to argue for eliminating software patents on this basis returns to your theme of abolishing anything that does not give you bright lines:)

    Let’s be clear, Noel: patent law prevents copying the implementation of a design, not its functional specification. Thus it does not prevent reverse engineering provided the competing product does not copy the implementation (as embodied by the source code).

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    TIm, patent law, probably more than the DMCA, prevents reverse engineering for interop. But again, this is unclear, and to argue for eliminating software patents on this basis returns to your theme of abolishing anything that does not give you bright lines:)

    Let’s be clear, Noel: patent law prevents copying the implementation of a design, not its functional specification. Thus it does not prevent reverse engineering provided the competing product does not copy the implementation (as embodied by the source code).

  • http://weblog.ipcentral.info/ Noel Le

    OK, fine. My point though is that various doctrines of patent law are used to protect reverse engineering, but patent law does not have a specific reverse engeering exemption like copyright law does.

  • http://weblog.ipcentral.info/ Noel Le

    OK, fine. My point though is that various doctrines of patent law are used to protect reverse engineering, but patent law does not have a specific reverse engeering exemption like copyright law does.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Noel: There is a logical extension to “If you handicap producers, those innovations won’t come to market.” If you handicap consumers by depriving them of fair use of a product or through onerous business practices the consumer simply won’t buy. If a consumer doesn’t buy the product it sits on the shelf and the producer goes bankrupt. For a society to function, both the producer and consumer must have their respective rights honored.

  • http://www.blogger.com/profile/14019452 Steve R.

    Noel: There is a logical extension to “If you handicap producers, those innovations won’t come to market.” If you handicap consumers by depriving them of fair use of a product or through onerous business practices the consumer simply won’t buy. If a consumer doesn’t buy the product it sits on the shelf and the producer goes bankrupt. For a society to function, both the producer and consumer must have their respective rights honored.

  • http://weblog.ipcentral.info/ Noel Le

    Good point Steve, but with the popularity of the iPod and its peripherals, I don’t think consumers care that much about interop. If they did, there owuld be a new market for DRM-free music players-services, and any company that could pull profit off such a business model would get right to it.

    What strikes me is that most of the concerns you read about over DRM don’t have that much do deal with the market (consumers). The market has told Apple its doing a fine job.

  • http://weblog.ipcentral.info/ Noel Le

    Good point Steve, but with the popularity of the iPod and its peripherals, I don’t think consumers care that much about interop. If they did, there owuld be a new market for DRM-free music players-services, and any company that could pull profit off such a business model would get right to it.

    What strikes me is that most of the concerns you read about over DRM don’t have that much do deal with the market (consumers). The market has told Apple its doing a fine job.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Noel: For now, I can’t argue that point. The consumer has spoken.

  • http://www.blogger.com/profile/14019452 Steve R.

    Noel: For now, I can’t argue that point. The consumer has spoken.

  • eric

    “Consumers benefit from the introduction of new innovations. If you handicap producers, those innovations won’t come to market.”

    But reverse engineering to allow interoperability IS an innovation. If you disallow that, you are handicapping producers. You are only choosing between different kinds of handicaps.

    Also, your example of the big success of the iPod is not especially convincing proof that consumers don’t care about interoperability. Yes, this is nominally true, but why don’t they care? Although people have purchased an astounding number of iPods compared to other competitors’ products, they are not necessarily using them in a way that heavily involves DRM. The average iPod user buys very few DRM’d downloads. The last figure I read, was that each iPod owner bought, on average, about 20-25 songs from the ITMS. So only a fraction of their iPod hard drives are DRM’d product. The rest? Presumably it is downloaded legally or illegally in a non-DRM format, most commonly MP3, or taken from the owner’s or the owner’s friends’ CD collections — again, non-DRM. My best friend owns an iPod, and he has no DRM’d songs on it whatsoever.

    Only for the dedicated, habitual ITMS customer — and the averages tell us there really aren’t that many who fall into that category — is DRM a major factor. For most, it is a minor issue, since their music is in MP3 format obtained from other sources. This puts the iPod on a more equal footing with other products in terms of interoperability, because it is doubtful most buyers of a Creative Zen player will be buying large collections of DRM’d songs, either.

    This may change, if predictions of the death of CD actually come true. But we still live in a world where most tunes used in these DRM-limited players are not DRM’d — they come from physical media (CD) or internet sharing. An MP3 you downloaded from a P2P application or ripped from a CD will work equally well on an Apple or non-Apple player. We are on the cusp of public awareness of these compatibility issues, because most consumer uses these products don’t cause compatibility conflicts.

  • eric

    “Consumers benefit from the introduction of new innovations. If you handicap producers, those innovations won’t come to market.”

    But reverse engineering to allow interoperability IS an innovation. If you disallow that, you are handicapping producers. You are only choosing between different kinds of handicaps.

    Also, your example of the big success of the iPod is not especially convincing proof that consumers don’t care about interoperability. Yes, this is nominally true, but why don’t they care? Although people have purchased an astounding number of iPods compared to other competitors’ products, they are not necessarily using them in a way that heavily involves DRM. The average iPod user buys very few DRM’d downloads. The last figure I read, was that each iPod owner bought, on average, about 20-25 songs from the ITMS. So only a fraction of their iPod hard drives are DRM’d product. The rest? Presumably it is downloaded legally or illegally in a non-DRM format, most commonly MP3, or taken from the owner’s or the owner’s friends’ CD collections — again, non-DRM. My best friend owns an iPod, and he has no DRM’d songs on it whatsoever.

    Only for the dedicated, habitual ITMS customer — and the averages tell us there really aren’t that many who fall into that category — is DRM a major factor. For most, it is a minor issue, since their music is in MP3 format obtained from other sources. This puts the iPod on a more equal footing with other products in terms of interoperability, because it is doubtful most buyers of a Creative Zen player will be buying large collections of DRM’d songs, either.

    This may change, if predictions of the death of CD actually come true. But we still live in a world where most tunes used in these DRM-limited players are not DRM’d — they come from physical media (CD) or internet sharing. An MP3 you downloaded from a P2P application or ripped from a CD will work equally well on an Apple or non-Apple player. We are on the cusp of public awareness of these compatibility issues, because most consumer uses these products don’t cause compatibility conflicts.

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