The One-Way DMCA

David Berlind wonders why Apple hasn’t sued Real or Navio for reverse-engineering FairPlay, Apple’s iTunes copy protection scheme:

I’m wondering how many more commercial enterprises have to reverse engineer Apple’s digital rights management technology (so as to emulate the iTunes Music Store as a source of iPod-compatible protected content) before it activates the laywers on that front. Today, two companies–RealNetworks and the recently launched Navio–have commercial offerings in the market that involve a reverse engineering of Apple’s DRM (or should I call it Apple’s DNA given how crucial it is to the long term success of the company) to the point that they can serve protected content that’s compatible with Apple’s iPods and iTunes. The existence of such copycats marginalizes Apple.

Originally, it looked as though Apple’s legal eagles were going to lower the boom on Real. Then, instead of following through, it updated its DRM technology in hopes of disabling Real’s hack. Real stayed in technical lockstep but has somehow managed to stay out of Apple’s legal cross-hairs. Now, Navio is in the game and thinks that it’s safe because of the way Apple dropped its case against Real. But does that mean Apple won’t try again? How can it not? I see another suit coming. Either that, or more iTunes Music Store knockoffs.

There’s a crucial legal distinction that Berlind is missing here: as far as I know, no one has hacked FairPlay to make their devices compatible with iTunes. All the reverse engineering efforts–including Real and Navio–have gone in the opposite direction: making Apple’s device (the iPod) compatible with their music store. The distinction is crucial.

The DMCA makes it illegal to “circumvent a technological measure,” which it defines as “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” The “without the authority of the copyright owner” is the important bit. If you’re the copyright owner–or his licensee–you can reverse engineer to your heart’s content. It’s only if you’re decrypting someone else’s content that you have to worry about DMCA liability.

What that means is that the lock-in created by the DMCA only works one way: if you’ve got a music store, you get to decide which devices can access the music. But if you’ve got a playback device, anybody can hack your device to put their music on it.

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