[Infowarrior] - RIAA Lawyer: DRM shouldn't work forever

[Richard Forno]

Big Content: ludicrous to expect DRMed music to work forever
By Nate Anderson | Last updated July 29, 2009 11:54 AM CT

http://arstechnica.com/tech-policy/news/2009/07/big-content-ridiculous-to-expect-drmed-music-to-work-forever.ars

When Wal-Mart announced in 2008 that it was pulling down the DRM  
servers behind its (nearly unused) online music store, the Internet  
suffered a collective aneurysm of outrage, eventually forcing the  
retail giant to run the servers for another year. Buying DRMed  
content, then having that content neutered a few months later, seemed  
to most consumers not to be fair.

But that's not quite how Big Content sees things—just ask Steven  
Metalitz, the Washington DC lawyer who represents the MPAA, RIAA, and  
other rightsholders before the Copyright Office. Because the Copyright  
Office is in the thick of its triennial DMCA review process, in which  
it will decide to allow certain exemptions to the rules against  
cracking DRM, Metalitz has been doing plenty of representation of late.

He has now responded to a host of questions from the Copyright Office  
following up on live hearings held earlier this year, and in those  
comments, Metalitz (again) strongly opposes any exemption that would  
allow users to legally strip DRM from content if a store goes dark and  
takes down its authentication servers.

"We reject the view," he writes in a letter to the top legal advisor  
at the Copyright Office, "that copyright owners and their licensees  
are required to provide consumers with perpetual access to creative  
works. No other product or service providers are held to such lofty  
standards. No one expects computers or other electronics devices to  
work properly in perpetuity, and there is no reason that any  
particular mode of distributing copyrighted works should be required  
to do so."

This is, of course, true, but that doesn't make it any less weird. The  
only reason that such tracks are crippled after authentication servers  
go down is because of a system that was demanded by content owners and  
imposed on companies like Wal-Mart and Apple; buyers who grudgingly  
bought tracks online because it was easy accepted, but never desired  
the DRM. To simply say that they are "out of luck" because they used a  
system that the rightsholders demanded is the height of callousness to  
one's customers. While computers and electronics devices do break down  
over time, these music tracks were crippled by design.

Such an attitude looks even stranger when you consider that the music  
labels have in fact removed DRM as a requirement at stores like iTunes  
and Amazon, so all tracks purchased today are open and may work in  
perpetuity, however much the labels would prefer people to keep  
repurchasing the same song.

Keep this reality in mind when you read Metalitz's next comment, which  
continues, "To recognize the proposed exemption would surely  
discourage any content provider from entering the marketplace for  
online distribution... unless it was committed to do so... forever.  
This would not be good for consumers, who would find a marketplace  
with less innovation and fewer choices and options."

The mind boggles. This reads like copy from a Bizarro World manifesto  
on DRM, since the reality of the market for downloaded music (which  
was the issue behind the proposed exemption) has shown quite clearly  
that people don't want DRM on their tunes and providers are happy to  
comply once the labels allowed it. The current situation, with several  
major stores and little or no DRM on downloads, is manifestly better  
for buyers.

While the issue may seem almost irrelevant now for downloaded music,  
DRM is still alive and well on streaming music and most video streams  
and downloads. Metalitz doesn't want his clients to face a situation  
where decryption tools can be produced under the proposed exemption,  
then widely distributed. How could such decryption tools be limited to  
those who have actually suffered from authentication servers going  
dark, he wonders?

But the Copyright Office indicated that it may grant the exemption,  
asking Metalitz and other respondents to "assume that" the case has  
been made. Metalitz declined to assume this, writing that "we cannot  
accept this invitation to assume that the Register [of Copyright] will  
recommend that the Librarian [of Congress] violate his statutory duty  
by recognizing Exemption 10B."

Metalitz suggests that the market will take care of problems that  
arise, pointing out that Wal-Mart and others have all kept their DRM  
servers running after public outcries. But Harvard Fellow Chris  
Soghoian, who proposed the exemption, noted that Wal-Mart will be  
shutting down its DRM servers for good in October 2009.

"Wal-Mart's latest actions provide ample evidence that the issue of  
DRM abandonware is not a hypothetical concern and that the market  
cannot be counted on to provide consumers with an adequate remedy," he  
wrote.