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Fair and Unfair Uses

Windows_media_drm_2There have been a flurry of stories lately about Microsoft's Windows Media DRM being cracked by developers of a program called FairUse4WM. Here is CNet's take on the arms race between the crackers and Microsoft, which quickly developed a patch to defend its DRM. Don't be fooled by the name of the program, though. This isn't about fair use. People who buy songs from Napster or any other online outlet already have a perfectly good solution for their fair-use needs: they can burn those songs onto an unprotected CD, and away go their compatibility problems. No, what such programs really seek to do is unilaterally change the terms of the deal between music services and consumers by transforming songs that people rent for a low fee into tracks they own. Hey, why pay 99 cents for a song when you can pay almost nothing?

Hmm. Because it's the right thing to do, maybe?

Really, I've had it with people who carp about how unjust subscription music services are because "you're left with nothing" if you stop paying your $10 or $15 a month. This isn't about collecting music, it's about about being entertained by it. Think cable TV or satellite radio. Look forward, not back. The monthly fees buy access to an ever expanding catalog of tunes, hundreds more every week. You're not just buying the ability to play something you know and love; you're paying for the right to hear, on demand, an ongoing supply of songs and artists you haven't yet discovered.

I subscribe to Rhapsody and eMusic myself, and the difference between the two makes clear why cracking the DRM on services such as Rhapsody and Napster isn't fair use. EMusic is a music-collecting service. It offers volume pricing on indie-music MP3s -- 40 tracks for $10 -- not unlimited access to songs. You can't hear songs on demand at eMusic; if you want to play more than a sample, you've got to use one of your 40 downloads to grab the MP3, which you then own. By contrast, you can play anything in Rhapsody's catalog as many times as you please; for an extra $5 per month, you can play the songs on a Microsoft-enabled portable music player wherever you go.

If you're wedded to an iPod, then maybe the value proposition at Rhapsody isn't good enough for you. Steve Jobs doesn't believe in subscription services, at least not yet, and he's locked them out of the iPod through his control over its software. If you pay the $15 a month, then hack the Rhapsody DRM to make the tracks work on your iPod, you may very well be making a fair use of those songs. But will you delete the songs from your iPod and your computer after your subscription expires? Will you honor the deal you made when you signed up for the service?

Billy_bragg_cd_cover One of the few major-label artists with a decent amount of work on eMusic is Billy Bragg. It's not his complete catalog, but it does include an absolutely wonderful greatest-hits collection (40 tracks, a whole month's allotment, but well worth it). Billy's a bit to the left of the American mainstream on many issues, but he's no socialist when it comes to ownership of his tracks and getting paid for his work. I urge you to read his comments about intellectual property, record labels and artists' rights, which ran yesterday in MediaGuardian. The topic is MTV Flux's apparent attempt to take rights for free from unsuspecting musicians in the UK who compete in homemade-video contests. But the underlying theme is that people need to respect the choices that artists make about how they distribute their work. In the past, he says, artists who wanted to get their records into stores (and benefit from the sales) had to sign with record labels. New technology makes it possible to take music directly with the consumer, but that shouldn't come at the expense of getting paid. If anything, it should increase the artist's take. I would add that artists will only see less, not more, when their "fans" hack DRMs to turn rentals into permanent downloads. Can we stop calling that fair? Please?


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Times editorial writer Jon Healey pens opinion pieces about a variety of business issues, and blogs about technologies that are changing the entertainment industry's business model.

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