September 19, 2006 | By Fred von Lohmann

Zune and Creative Commons

There has been quite a bit of discussion (BoingBoing, Medialoper, Slyck) about whether Microsoft's new Zune portable media player will end up violating Creative Commons licenses with its DRM-laden wireless sharing feature. For a careful examination of the question, check out this post at LawMeme from New York Law School Adjunct Professor and former EFF legal intern, James Grimmelman:

First, Microsoft is not, presumably, loading up these devices with CC-licensed media and streaming the files around. Thus, Microsoft hasn't even passed the basic threshold for violating a license: having been a licensee in the first place. If anyone is violating the licenses here, it's the users loading up CC files on Zunes and them sending them to friends along with some tasty DRM.

Update: Apparently, Zune won't "wrap" songs in DRM -- the files themselves are transferred in whatever format they originated in. However, the 3 day/3 plays restriction will still apply. In other words, you may have that song on your Zune as an unprotected MP3, but your Zune won't play it for you on the 4th day after your friend sends it to you. Of course, we'll have to check all this once the Zune actually ships, but that's what the "official" Zune blogs have told us so far.

Update 2: Cory Doctorow has submitted a great follow-up to James' post, pointing out that whether or not it's technically illegal, the Zune mis-feature is a bad idea:

I haven't seen anyone argue that CC rightsholders should have the right to sue MSFT for the Zune's device. But I think it's proper for CC rightsholders to be indignant that protecting their business-model isn't important to MSFT, while protecting the entertainment industry's business model is a pretext for redesigning its entire business. MSFT violates the CC licenses in the sense of deliberately omitting consideration for them in their product designs — by trumping the will of the users of the licenses.


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