MSN Music Debacle Highlights EULA Dangers

When Microsoft announced that it will no longer support former MSN Music customers who want to play their DRM disabled music on new computers, DRM-hating consumer advocates justifiably cried out, “I told you so!” But this debacle is not just another example of the dangers of DRM: its also a reminder of the danger of overreaching end user license agreements, or EULAs

Just as DRM allows unprecedented corporate control over music and movies, the EULAs that Microsoft and other content vendors force users to click through before downloading songs, shows or films help enforce and expand that control. For example, EULAs usually claim that whatever happens, you can't sue the company--even for problems that are entirely of the company’s own making. And EULAs are often used to try to limit a company’s obligation to live up to its apparent promises.

What this means is that buying music (or software) on line is quite different from making your purchase at the store. When you buy a regular CD, you own it. You're allowed to do anything with it you like, so long as you don't violate one of the exclusive rights reserved to the copyright owner. So you can play the CD at your next dinner party (copyright owners get no rights over private performances), you can loan it to a friend or make a copy for use on your iPod. Every use that falls outside the limited exclusive rights of the copyright owner belongs to you, the owner of the CD. And if it won’t play, you get to bring it back and get a refund. Both technology and custom give vendors a lot more power when selling digital goods. Unlike the CD purchase, when I download from Microsoft Music, I don't just get the music, I get the “Service Agreement” as well. And if the Service Agreement tells me that there just might not be any Service, then I could be stuck with the digital version of an empty jewel box.

MSN Music’s EULA is a case in point. When active, MSN Music's webpage touted that customers could “choose their device and know its going to work”.

But when customers went to purchase songs, they were shown legalese that stated the download service and the content provided were sold without warrantee. In other words, Microsoft doesn't promise you that the service or the music will work, or that you will always have access to music you bought. The flashy advertising promised your music, your way, but the fine print said, our way or the highway.

Microsoft isn't alone. Many other DRMed music services also make false promises to customers including Apple iTunes, RealNetworks and Napster 2.0.

Which applies, the marketing promises or the fine print?

[Read the entire post]

MSN Music Pulls the Plug on Customers

Last week, Microsoft announced that it was leaving the paying customers of its MSN Music store out in the cold. Rob Bennett, the head of MSN Entertainment and Video Services, told customers in an email that “[a]s of August 31, 2008, we will no longer be able to support the retrieval of license keys for the songs you purchased from MSN Music or the authorization of additional computers."

In other words, the DRM copy protection that Microsoft and the major record labels insisted customers put up with has now drastically devalued that music -- at least for consumers who like to regularly upgrade their PCs. Come August 31st, if you buy a new computer, or even upgrade your OS, you’ll have to give up your MSN Music.

Bennett says the burden of managing its DRM servers and updating its code with every OS change created problems that were unmanageable. “We really feel, in the long term, what’s best for people who want to buy music from Microsoft is to move to Zune,” Bennett told CNET.

If Bennett is truly concerned with “what’s best for people,” he can start with ensuring that his customers can enjoy their legally purchased digital content on whatever machines they choose to use, on whatever OS or devices they have in the future. Indeed, if Microsoft doesn’t take immediate steps to provide that assurance, it’s hard to imagine why anyone would want to move to Zune and risk having their their digital content damaged the next time Microsoft decides its business interests require shutting down a music service.

“No one ever foresaw being in this situation,” Bennett told CNET. But if Microsoft had listened to consumer advocates and digital rights proponents, it might not have been so surprised to find that DRM is bound to cause problems. EFF Fellow Cory Doctorow gave a speech at Microsoft in 2004 in which he told executives:

There is no market demand for this "feature." None of your customers want you to make expensive modifications to your products that make backing up and restoring even harder. And there is no moment when your customers will be less forgiving than the moment that they are recovering from catastrophic technology failures.

EFF predicted that DRM-laden music could be rendered useless when companies stop supporting it in our paper “The Customer Is Always Wrong: A User’s Guide to DRM in Online Music”: “If the time comes that stores and devices no longer support your DRM, you're entirely out of luck.”

Among the many problems with DRM, its threat to musical longevity is one of the most insidious. Vinyl records created decades ago continue to play just fine, on whatever brand of player the music listener desires, thus insuring that our musical heritage is preserved for future generations. By making digital music rely on a license controlled by Microsoft or some other corporation, DRM makes it harder for us to share and preserve our history.

Of course, Microsoft is not entirely insensitive to the desire of its customers to hold on to their music. That’s why they’ve suggested that MSN Music customers strip the DRM from their music by burning it to CD, then re-importing it. The odd thing about this suggestion is that the more music you bought from Microsoft -- the more of a loyal customer you were -- the more time you are expected to spend sitting in front of your computer, burning discs and then re-importing them (degrading the sound quality in the process).

EFF is calling on Microsoft to do the right thing and ensure that their customers maintain their ability to enjoy the content they paid for. We’ve written an open letter to Microsoft demanding that they take steps to make things right with their customers, including issuing an apology, compensating MSN Music customers, and publicly committing to keeping Zune customers from being stuck in the same boat.

We’ll be watching to see how Microsoft responds. And meanwhile, we’ll continue to argue against DRM and other forms of content restriction that limit the rights of the public to access and control content they own.

[Permalink]

Adobe Pushes DRM for Flash

The immense popularity of sites like YouTube has unexpectedly turned Flash Video (FLV) into one of the de facto standards for Internet video. The proliferation of sites using FLV has been a boon for remix culture, as creators made their own versions of posted videos. And thus far there has been no widespread DRM standard for Flash or Flash Video formats; indeed, most sites that use these formats simply serve standalone, unencrypted files via ordinary web servers.

Now Adobe, which controls Flash and Flash Video, is trying to change that with the introduction of DRM restrictions in version 9 of its Flash Player and version 3 of its Flash Media Server software. Instead of an ordinary web download, these programs can use a proprietary, secret Adobe protocol to talk to each other, encrypting the communication and locking out non-Adobe software players and video tools. We imagine that Adobe has no illusions that this will stop copyright infringement -- any more than dozens of other DRM systems have done so -- but the introduction of encryption does give Adobe and its customers a powerful new legal weapon against competitors and ordinary users through the Digital Millennium Copyright Act (DMCA).

Recall that the DMCA sets out a blanket ban on tools that help "circumvent" any DRM system (as well as the act of circumvention itself). When Flash Video files are simply hosted on a web site with no encryption, it's unlikely that tools to download, edit, or remix them are illegal. But when encryption enters the picture, entertainment companies argue that fair use is no excuse; Adobe, or customers using Flash Media Server 3, can try to shut down users who break the encryption without having to prove that the users are doing anything copyright-infringing. Even if users aren't targeted directly, technology developers may be threatened and the technologies the users need driven underground.

Users may also have to upgrade their Flash Player software (and open source alternatives like Gnash, which has been making rapid progress, may be unable to play the encrypted streams at all). Third-party software that can download Flash Video, like the most recent RealPlayer, will also break. But Adobe now has an incentive to push the use of DRM: it's only available to sites that use Flash Media Server 3 software, which starts at over $4,000 (with extra fees depending on the number of simultaneous streams).

Furthermore, the prospect of widespread adoption of DRM restrictions on Flash threatens to squash a growing tradition of expressive fair use of online video -- a practice effectively in its infancy that, left unfettered, would be a dynamic solution to our failing effort to teach media literacy. Before we understand how to read media messages, we must first learn how to speak their language -- and we learn that language by playing with and remixing the efforts of others. DRM, by restricting the remixing of Flash videos, stands to bankrupt a rich store of educational value by foreclosing the ability of students and teachers to "echo others" by remixing videos posted online.

Take the example of "A Vision of Students Today" vs. "(Re)Visions of Students Today". The first "Vision" YouTube video is an artful critique of higher education's failure to come up with new models of instruction that engage the modern student; the second "(Re)Vision" YouTube video is an incisive observation of higher education's crisis in diversity (summarily expressed by the lack of diversity in the original "Vision" video). The original and the remix support each other to instruct with an influence above and beyond the power of either video alone.

Outside the halls of academia, we can see that the ability to openly download and remix video is part of a new ecosystem of amateur entertainment -- watch Drama Prairie Dog and its countless responses:

• "Dramatic Prairie Dog vs. Kung Fu Baby (Best Remix Ever)"
• "Hollywood Zombies Dramatic Prarire Dog"
• "Dramatic Look Bond Remix"
• Drama Prairie Dog - Zoolander
• "Drama Prairie Dog -- Kill Bill"
• (an obligatory Star Wars-related remix) "Darthmatic Chipmunk"

As we noted above, remixers who find and use tools that break the Flash Video encryption could be sued, even if their transformative creations would otherwise have been fair use.

Finally, there's a classic suite of arguments against DRM that will be as true for online video as they were for music. DRM doesn't move additional product. DRM is grief for honest end-users. And there's no reason to imagine that new DRM systems will stop copyright infringement any more effectively than previous systems.

[Permalink]

Last Major Label Gives Up DRM

Back in December 2005, we announced the beginning of the end for DRM on music. Well, two years later, we're getting close to the end of the end, with Sony-BMG announcing that it, too, will be giving up on DRM for music downloads (at least for some of its catalog). Sony-BMG is the last of the four major labels to take this step.

It's about time. As online music retailers have been pointing out for years, DRM has only held back the authorized downloading services in their efforts to compete against the unauthorized world of P2P file sharing.

This isn't quite the end of DRM on digital music, however. The last hold out is DRM on subscription services like Rhapsody and Napster. Some have argued that DRM is necessary for the subscription business model, an argument that I think doesn't hold up under scrutiny. After all, anyone with any motivation can convert their Rhapsody "streams" into downloads, DRM notwithstanding. So it's not the DRM that keeps people paying their monthly subscription bills -- it's convenience, inventory, and other features that add value to the experience (DRM, on the other hand, is about subtracting value from the fan's experience).

But there is also evidence suggesting that DRM on streams may be dying, as well. Leading next-generation streaming music services, like iMeem, are using FLV (a streaming format with no DRM) for their music offerings. And iMeem is licensed by all of the major labels, so it appears that DRM is no longer a requirement for authorized music streaming, either.

Next step (and I hear that at least one major label is considering it) will be a blanket license for music fans -- pay a small monthly fee, and download whatever you like, from wherever you like, in whatever format you like. This is the inevitable end-game in a world where file sharing remains hugely popular and the labels want to prevent new retailers (like iTunes) from controlling distribution.

[Permalink]

2008: DRM continues to punish paying customers

Just three days into the new year, we have another example of DRM punishing paying customers, rather than "pirates." Netflix subscriber Davis Freeberg ran headlong into an incompatibility between Microsoft DRM and ... Microsoft DRM.

The trouble all started when Freeberg bought a new monitor for his Vista computer. When he decided to watch streaming movies from Netflix, Netflix documentation warned him that the recommended means of fixing a problem with DRM-restricted Netflix programming "may remove licenses to other content using Microsoft DRM" -- including, in particular, restricted programming he had already purchased through Amazon Unbox. Trying to resolve this problem just got Freeberg a tech-support runaround, with each company involved pointing the finger at another.

Tech support problems are not unfamiliar to PC users, but where did this problem come from? Freeberg was just trying to use a new monitor with his computer; his reward, apparently, was broken DRM software, which couldn't be sure the new monitor met movie studios' arbitrary requirements (or perhaps just couldn't be sure whether it could be sure). Furthermore, the DRM industry -- which has already spent countless engineer-hours making "approved" and "licensed" products (seemingly at the expense of "compatible" and "interoperable" devices) -- couldn't even offer Freeberg a clear path out of this jam.

Is this mess stopping copyright infringement? Nope -- it's still easy to copy media and easy to find unauthorized copies. In fact, one commenter points out that the easiest "fix" for Freeberg's trouble appears to be downloading the movie from an unauthorized torrent tracker.

Freeberg's conundrum is likely the product of the Protected Media Path (PMP) (mis)features that have been added to Microsoft's Vista operating system. Thanks to PMP, Vista computers can now "audit" the video outputs, supposedly to ensure that only "authorized" (aka DRM-laden) video boards and monitors can receive Hollywood content. Unfortunately, these kinds of (mis)features generally (1) don't stop pirates and (2) result in compatibility headaches for paying customers.

[Permalink]

LimeWire on 1 in 3 Desktops World-Wide

Digital Music News and BigChampagne report that 36.4% of all PCs world-wide have LimeWire installed, based on system scans of 1.6 million machines.

This is worth noting for at least two reasons. First, it reminds everyone that when it comes to digital music, the main event is still P2P file-sharing, as it has been ever since Napster's debut in 1999. The entire apparatus of "legitimate" online digital music stores (like iTunes) remains just a drop in the bucket. And the entertainment industries still haven't taken any meaningful steps toward a collective licensing solution to monetize P2P, as we've been urging since 2004.

Second, this is yet another empirical nail in the DRM coffin. The Darknet remains robust and generally accessible to mainstream computer users. So long as consumers continue to have simple, easy ways to share digital content, once DRM has been stripped from a file, the now-liberated content flows freely. In other words, all it takes is one leak (and DRM always leaks). And in a world with easy sharing, fans don't need to bother with DRM-cracking tools, which means the DMCA's anti-circumvention provisions really aren't doing any good (but continue to do plenty of harm).

[Permalink]

Year-End 2007: Darknet Assumptions Still True

Princeton's Professor Ed Felten (full disclosure: he's an EFF board member) in a recent post on his blog reminds us that one of the core "Darknet premises" -- that DRM systems on mass media content will inevitably be broken -- continues to prove itself true. The victim this year, AACS:

We’ve been following, off and on, the steady meltdown of AACS, the encryption scheme used in HD-DVD and Blu-ray, the next-generation DVD systems. By this point, Hollywood has released four generations of AACS-encoded discs, each encrypted with different secret keys; and the popular circumvention tools can still decrypt them all. The industry is stuck on a treadmill: they change keys every ninety days, and attackers promptly reverse-engineer the new keys and carry on decrypting discs.

One thing that has changed is the nature of the attackers. In the early days, the most effective reverse engineers were individuals, communicating by email and pseudonymous form posts. Their efforts resulted in rough but workable circumvention tools. In recent months, though, circumvention has gone commercial, with Slysoft, an Antigua-based maker of DVD-reader software, taking the lead and offering more polished tools for reading and ripping AACS discs.

To many who follow DRM issues closely, this is hardly news; the regular breaking of DRM systems, followed by the steady leak of formerly-protected content into file-sharing channels, is now so common that it barely rates a mention in the tech press.

But copyright policy-makers still haven't gotten the message (hey, policy-maker: DRM does not slow piracy!!). Whether they get the message or not, this steadily mounting pile of empirical evidence continues to show that the anti-circumvention provisions of the DMCA (i.e., "thou shalt not circumvent DRM") are a failure if the goal was to impede digital infringement. At the same time, of course, the DMCA continues to be a valuable tool for rightsholders who want to use DRM to impede competition, innovation, and free speech.

[Permalink]

Is DRM "Enabling New Business Models"?

Advocates for the DMCA's ban on circumventing DRM have long argued that legal protection for DRM is necessary to "enable new business models" that will "create more choices for consumers." A recent blog post by Yahoo Music's general manager, Ian Rogers, suggests that the DMCA hasn't actually delivered on that rosy promise.

According to Ian, who has been part of the online music business from nearly its inception, DRM has been an impediment to the creation of new business models, not an enabler:

8 years. How much opportunity have we lost in those 8 years? How much naivety and hubris did we have when we said, "if we build it they will come?" What did we spend? And what did we gain? We certainly didn't gain mass user adoption or trust, two prerequisites to success on the Internet.

The former head of Yahoo Music, David Goldberg, said much the same thing last year.

This is Yahoo, the "legitimate" player, trying to work with the music industry to "enable new business models." Final verdict? Yahoo is done with DRM for its music offerings:

I'm here to tell you today that I for one am no longer going to fall into this trap. If the licensing labels offer their content to Yahoo! put more barriers in front of the users, I'm not interested. Do what you feel you need to do for your business, I'll be polite, say thank you, and decline to sign. I won't let Yahoo! invest any more money in consumer inconvenience. I will tell Yahoo! to give the money they were going to give me to build awesome media applications to Yahoo! Mail or Answers or some other deserving endeavor. I personally don't have any more time to give and can't bear to see any more money spent on pathetic attempts for control instead of building consumer value. Life's too short. I want to delight consumers, not bum them out.

The rest of the "legit" music industry is also moving away from DRM, and there are precious few examples of new models "enabled" by DRM (Apple's iTunes succeeds despite DRM, not because of it, as Steve Jobs made clear in his "Thoughts on Music").

The last frontier is subscription services. Many still argue that DRM is "necessary" for music subscription services like Rhapsody. It is high time someone start questioning this received wisdom, as well. If Rhapsody gave up its DRM tomorrow, how much of a difference would it make? After all, any minimally motivated subscriber can already turn their Rhapsody streams into downloads.

Rather than worrying so much about how to erase all the music when a subscriber stops paying, the music industry needs to worry more about giving music fans a reason to come in from the P2P/iPod swapping/CD burning cold (hint: threatening them with $222,000 verdicts isn't going to do the trick).

We hate to sound like a broken record here at EFF, but how about offering fans a blanket downloading license for a few dollars a month?

[Permalink]

iTunes Ringtones: Making You Pay Again For Music You Already Own

Tired of paying several dollars to buy ringtone versions of music you already own? When it comes to songs ripped from your CD collection or downloaded MP3s, widely-available software tools allow you to roll your own ringtones instead and put them on a variety of phones.

But what the world of unencrypted music giveth, DRM-locked media taketh away. DRM allows media vendors to restrict your fair use rights so that they can be sold back to you piecemeal as "features."

The latest example: Apple's announcement that you can now create ringtones of DRM-locked iTunes-purchased music. Apple will only let you convert those tracks to ringtones if you pay another dollar, and, just as you can only move iTunes DRM restricted tracks to the iPod and not other portable players, these ringtones only work on the iPhone. If you'd rather create your own ringtone using a tool like iToner, too bad -- the DRM won't let you, and circumventing the lock could violate the Digital Millennium Copyright Act (DMCA).

Imagine if this is how the CD world had worked. Your investment in CDs has paid all kinds of dividends over time because third parties could freely enable novel personal uses, like ripping MP3s and moving them to a portable player of your choice. Innovators didn't need to beg copyright holders' or record stores' permission first in order to help you get more from your music collection.

DRM can take away that freedom and the innovation it enables, as rights holders and vendors can block new tools outright and make you pay again and again to use music you've already purchased. Restricting compatible players and the creation of ringtones is just the tip of the iceberg.

(As we pointed out earlier, Apple is also apparently trying to frustrate turning unencrypted songs into iPhone ringtones using iToner. Will Apple try to use the DMCA to squash this legitimate use as well? Time will tell.)

[Permalink]

Update on DRM in Music Radio Negotiations

As we reported last week, the major label-backed licensing authority SoundExchange conditioned lower royalty rates for large commercial webcasters on implementing DRM. This issue is proving quite contentious, and it looks like the webcasters have refused the offer -- the LA Times' Jon Healey and Wired's Listening Post have more.

What's at stake here isn't just the implementation of DRM-laden streaming formats like WMA but also whether the RIAA will get to dictate the sorts of technologies that webcasters use in the future. After all, while DRM would certainly frustrate certain tools that allow users to time-shift, it won't make a lick of difference to software like Total Recorder and Audio Hijack that can record sound as it's outputted in unencrypted form to a sound card. You can bank on the RIAA coming back for more restrictions once it gets DRM in the door, as long as it can hold the threat of ridiculous royalty rates over webcasters' heads.

[Permalink]