Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
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The New York Times reports that Real has reverse-engineered Apple's proprietary FairPlay DRM so that music in Real's proprietary DRM format can be converted to FairPlay and played on the iPod (RealNetworks Plans to Sell Songs to Be Played on iPods). Strangely, there is no mention of Hymn (Hear Your Music aNywhere), which has also reverse-engineered FairPlay. I wonder if any Real engineers looked there for some hints (well, actually the whole thing), given that they wouldn't want to violate any of Apple's click-wrap contracts. Hmmmm. For more information, Frank Field has a good roundup of press coverage and the press release on Furdlog (Mousetrapped?).
Of course, the NY Times gets the reporting wrong. "This will be the first time any company other than Apple has sold songs for the iPod." Ummm, no. Any company that sells songs in the non-DRM'd encumbered MP3 format is selling songs for the iPod, given that the iPod supports MP3 playback. Check out Magnatune for example.
One question, of course, is whether Real's efforts here violate the DMCA, which prohibits the distribution of anti-circumvention devices. Such an analysis is very fact-dependent, and there isn't enough known about Real's program to say for sure, but I suspect that it doesn't. Real's software is apparently converting songs from one format into the FairPlay DRM'd format. This would not seem, without more information, to be an anti-circumvention function.
Note, however, what Real is not doing (and strangely, the news reports don't seem to mention either). You can convert Real files into FairPlay files, but you can't convert FairPlay files into Real files. Real is not allowing people to copy their iTunes into Real's DRM'd format. Why? Because it would likely be a clear violation of the DMCA. You may be able to play Real's DRM'd music on an iPod, but you still won't be able to play iTunes on a portable music player other than an iPod.
So, this isn't quite the breakthrough the analysts and whatnot seem to be claiming. If you buy anything from iTunes, you're still locked into Apple. If you buy an iPod, you can buy from Real's music store, but what real advantage does that provide? A DRM connoisseur might say that you will have the option of using other players in the future, but so what? Anyone who knows anything about DRM knows that you can't trust any of these competing formats. Perhaps in a few years one might want to buy another brand of portable music player, but what happens if Real's DRM fails in the marketplace and is squeezed out? What good did the flexibility do?
If people really care about DRM and its potential costs in the future, then they probably are avoiding DRM all together and sticking with non-DRM formats such as MP3 or Ogg Vorbis. Let me know when there is some important news here, such as Apple licensing FairPlay for use on other players.
You're right that the DMCA analysis would be very fact-dependent, but let me throw out the circumvention argument.
Because they are not trafficking in a circumvention device, Real doesn't violate 1201(a)(2) or (b), but they might violate (a)(1). If they had to circumvent the DRM on a FairPlay-wrapped song in order to make Harmony, then they violate (a)(1). They would only fall under the reverse engineering exception if they were trying to create program-to-program interoperability. Given that courts have interpreted the definition of program narrowly (to not include movies, music, etc. and maybe not even data), I don't see their actions fit.
There's also the matter of the Apple iTMS license, which prohibits a wide-range of "tampering" with the DRM.
We don't know exactly how they created Harmony, so we'll have to wait for more facts. This could get very interesting...
I don't see a need to violate 1201(a)(1). They might have, you're correct, but not necessarily. I suspect that Real's engineers could learn all they need to know from HYMN. Indeed, according to some reports they got everything they need to know from publically available sources.
Thus, my hmmmmmm....
Interesting. So a widely-available circumvention device enabled others to work around DRM without actually circumventing. Oh the tangled web we weave.
Obtaining and reverse-engineering the circumvention device is not a violation of the DMCA. :-)
You seem to be discussing the question of whether Real violats the DMCA by putting material into the FairPlay format, and deciding that it probably does not. What about the question of whether Real violates the DMCA by taking material out of Real's Helix format?
Judging from a quick skim of the NYT article and the HYMN project website, it seems that you can buy Helix-encoded material, use Harmony to download it to your iPod, and then use HYMN to break the DRM. Does this mean that a copyright holder who sells Helix-encoded material can sue Real under the DMCA, for providing a large part of a Helix circumvention device?
Carl, that occurred to me too, but I don't think it's an issue. Probably something in the licensing agreement with the labels allows them to do this, either specifically or in some general way. I can't see Real being silly enough to simply trust that the labels would never get upset about this.
But who knows - the facts aren't well known enough.
Also: another thing that Harmony DOESN'T do. It allows you to turn Helix-wrapped song into DRM wrapped WMA; however, just as with FairPlay, you can't move from WMA to Helix format.
Clarification about Carl's point: it's not that you could use HYMN to break the DRM. It's that Harmony could be considered a circumvention device of Helix. The question is whether is whether the copyright holder gave Real permission to do this.
Hymn didn't reverse engineer FairPlay. Hymn uses the over 6 months old VideoLAN FairPlay code.
http://www.hymn-project.org/docs/hymn-manual.html#acknowledgements
http://www.theregister.co.uk/2004/01/05/itunes_drm_cracked_wide_open/
http://developers.videolan.org/cgi-bin/viewcvs.cgi/vlc/modules/demux/mp4/
There was no mention of hymn or VideoLAN in the CNet News article either. Journalists are appearently not very good at connecting dots...
"If people really care about DRM and its potential costs in the future, then they probably are avoiding DRM all together and sticking with non-DRM formats such as MP3 or Ogg Vorbis."
Correct, but it has nothing to do with cost, it has to do with the purpose of DRM.
DRM exists to completely nullify one's ability to use an infinitely flexible tool
Would you buy a swiss army knife every tool but one permanently welded so as to prevent use?
The public is not stupid.
"Let me know when there is some important news here, such as Apple licensing FairPlay for use on other players."
As far as I can tell, one doesn't need a license for that. Hopefully this move by Real will encourage other companies to tell Steve Jobs to stick his license somewhere.
I think this is a big deal because it could set the precident ( if Apple sues... or if they don't ) as to if converting one type of DRM file to a different format is or is not circumvention - afaik the issue is a little cloudy at present.
Maybe what Real is doing has nothing to do with Fairplay. The first thing I noticed at Real's music site, was that they were no longer selling their downloads in their old proprietary .ra format. Those tricky guys have switched over to AAC. http://tinyurl.com/4w5ep
Maybe all they are doing is pulling off their DRM and loading plain AAC files on to the iPod.
I'm more intrigued by how they get the files to load onto .wma players. Maybe they've taken a page from Sony's handbook, and are simply converting them into .wma of mp3, as they load.
If the files cannot be downloaded off of the players, back onto a computer, do they really need DRM?
Tracked on July 26, 2004 06:29 PM
RealNetworks breaks Apple's hold on iPod from Online Music Blog RealNetworks announced Monday that it has unlocked some of Apple Computer's most tightly held technology secrets, giving its music a way ont [Read More]Tracked on July 26, 2004 08:09 PM
Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM? from The Importance of... An interesting point was raised in the comments section of my posting on Real's software that converts music files with Real's Helix DRM to Apple's FairPlay DRM (What Real's Hacking of FairPlay Doesn't Do). Carl Witty and Derek Slater discuss... [Read More]Tracked on July 27, 2004 02:52 AM
Real's Harmony Hype from A Copyfighter's Musings Ernest covers the most important points [Read More]Tracked on July 28, 2004 02:50 AM
Can Real Sue Apple Under the DMCA? from The Importance of... Derek Slater has some further thoughts on Real's announcement that they will be able to convert their Helix DRM files into Apple's FairPlay DRM format, but not the other way around (Real's Harmony Hype). Reading his article made me consider... [Read More]Tracked on July 28, 2004 05:15 PM
Apple Gets Real Serious About Harmony from The Importance of... I've been writing a lot recently about the Real / Apple imbroglio (What Real's Hacking of FairPlay Doesn't Do, Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM?, and Can Real Sue Apple Under the... [Read More]Tracked on July 29, 2004 06:50 PM
Apple vs. Real: The Debate Continues from The Importance of... The repercussions of the Apple/Real conflict continue, and much can be learned from the various commentaries. Previous coverage here: What Real's Hacking of FairPlay Doesn't Do, Apple Gets Real Serious About Harmony and Will Real's DRM Strategy Succeed... [Read More]Tracked on August 20, 2004 07:33 PM
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