Asking the musical question, Is DRM necessary?

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The EFF’s Fred von Lohmann, who dislikes DRM even more than Steve Jobs purports to, recently uncovered more evidence that the major record labels’ love affair with technical protection measures is waning. On the EFF’s Deeplinks blog, von Lohmann reports that two noteworthy sites offering free music on demand, iMeem and Lala, don’t use DRM to protect their streams. Instead, as von Lohmann artfully puts it, the songs are sent to users’ computers as ‘MP3s dusted with a dash of obfuscation.’ Heh heh heh -- kind of like my prose! He then advises readers how to make permanent copies of the music, most likely in violation of the sites’ terms of service and certainly contrary to the spirit in which the songs are offered.

I don’t think I’ve ever won an argument with von Lohmann, so let me say upfront that he’s right about at least one thing. The fact that the major record companies let iMeem and Lala provide on-demand music sans DRM undermines the RIAA’s plea for Congress to require webcasters to use ‘technological measures’ to limit recording. Still, I disagree with his assertion that subcription music services don’t need DRM, either. First, to define terms: by DRM, von Lohmann means a technical protection measure that would be illegal to circumvent under the Digital Millennium Copyright Act of 1998. Fair enough. One of the main functions of DRM in subscription-music services such as Rhapsody and Napster is to let customers download temporary copies of songs to their computers and transfer them to portable devices. The DRM acts as the built-in time bomb, rendering the songs unplayable if the subscriber stops paying monthly fees. Von Lohmann’s post didn’t address how a subscription service would solve the portability problem without DRM, but he offered this explanation in a subsequent e-mail:


No reason you couldn’t take care of portability in a subscription service by ‘importing’ through an application (see, e.g., iTunes) that automatically deletes files if your subscription lapses. The iMeem and LaLa examples make it clear that *most* users won’t bother circumventing such a system, even if the files are actually just MP3s and otherwise accessible with a little effort. In other words, it’s the inconvenience that is protecting you, not the DMCA.

The problem for many record companies and artists is that ‘most’ consumers aren’t the ones buying their albums. A relatively small minority accounts for the lion’s share of music purchases. If those people are the ones turning subscription services into all-you-can-copy buffets -- with the help of bloggers who show them how to do it -- the deteriorating market for music sales will get even worse. According to Von Lohmann’s post, ‘there’s no reason to think that those who prefer commercial-free subscriptions like Rhapsody are more likely to `pirate’ streams than those who prefer ad-supported services like LaLa.’ Actually, there are a couple of reasons (and, umm, Lala isn’t ad-supported, its costs are built into the price of the items Lala sells). First, unlike iMeem and Lala, Rhapsody and Napster are designed to facilitate consuming music in bulk. Second, their catalogs are more extensive, particularly in comparison to iMeem’s. Third, subscribers are more prone to feeling entitled to keep copies because they had to pay to use the service. And fourth, from the labels’ point of view (and the studios, although we’re not talking about that here), the presence of DRM on files sends an important (albeit not impregnable) message to consumers that the files aren’t supposed to be kept forever.

You could argue that subscription services aren’t gaining headway (note how Napster reported 52,000 fewer subscribers as of June 30 than it had March 31) because of DRM-related issues, particularly the incompatibility with the planet’s favorite MP3 player. A bigger problem, though, is that most consumers don’t like the idea of ‘renting’ songs, and that would be true regardless of whether DRM is involved -- unless, of course, the point in removing DRM would be to change subscriptions from sampling services to bulk-buying ventures, a la eMusic. I stubbornly cling to the belief that subscriptions can become a mass-market phenomenon once consumers view them not as alternatives to CD buying, but as a form of entertainment on demand -- a more personalized version of satellite radio, if you will. When WiFi and mobile broadband networks are ubiquitous and cheap, then subscription services can stick with streams and conditional access, eliminating the need for DRM-wrapped downloads. Until that day, however, I just don’t see labels trusting customers enough to offer their entire digital catalogs for $12 or $13 sans DRM. And what matters here isn’t just what’s technically possible, it’s what the rights holders will accept in order to play along.

-- Jon Healey

Healey writes editorials for the Times’ Opinion Manufacturing Division.