July 29, 2004
Real Responds; Pot Persists In Calling Kettle Black
What a riot. First, Real implements a proprietary DRM scheme, and then tells Apple that they should license FairPlay. Now, having sued the makers of software that interoperates with Real’s software, Real tells Apple that the DMCA allows creation of interoperable software and Apple has no grounds to sue over Harmony.
Here’s Real’s press release: (emphasis added)
“RealNetworks, Inc. is delighted by initial consumer and music industry support for Harmony. Compatibility, choice and quality are critically important to consumers and Harmony provides all of these to users of the iPod and over 70 other music devices including those from Creative, Rio, iRiver, and others. RealPlayer Music Store provides the highest sound quality of any download music service. That’s why so many consumers have welcomed news of Harmony. Consumers, and not Apple, should be the ones choosing what music goes on their iPod.
Harmony follows in a well-established tradition of fully legal, independently developed paths to achieve compatibility. There is ample and clear precedent for this activity, for instance the first IBM compatible PCs from Compaq. Harmony creates a way to lock content from Real’s music store in a way that is compatible with the iPod, Windows Media DRM devices, and Helix DRM devices. Harmony technology does not remove or disable any digital rights management system. Apple has suggested that new laws such as the DMCA are relevant to this dispute. In fact, the DMCA is not designed to prevent the creation of new methods of locking content and explicitly allows the creation of interoperable software.
We remain fully committed to Harmony and to giving millions of consumers who own portable music devices, including the Apple iPod, choice and compatibility.”
See also this article in Forbes. I see the distinction Real’s trying to make; Streambox actually removed the DRM such that you could record the stream. But the distinction is irrelevant in the eyes of the DMCA. You’re either circumventing or you’re not. It doesn’t matter that you circumvent and then put the file in another DRM format. update: See above and the comments section for this post for what I mean by this.
Filed by Derek Slater at 4:04 pm under General news
4 Comments
The distinction is NOT irrelevant in the eyes of the DMCA. In fact, it is squarely in in the eyes of the DMCA itself.
Pay close attention to the latter half of the paragraph. It’s not a slam dunk for Real, but damn close.
“(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.”
I think you actually mean the (a)(1) distinction, because Harmony isn’t a circumvention device itself. But your point may still be valid. The distinction between Reimerdes and Streambox is that Harmony puts the file right into another DRMed format and that’s ALL it can do – therefore, interop is Harmony’s “sole” purpose.
Having said that, it’s still not an easy fit for Real. 1201(f) only allows for interop from program-to-program. In Title 17, program has a limited definition that may not include data. The Reimerdes case specifically said that interop between program-to-movie did not qualify. Thus, program to data/music interop might not qualify either.
Even if Real can maintain this distinction in court, it makes for a rather narrow defense of interop. It is far from defending the “well-established tradition” of interop. So, as far as principles go, it’s still a poor fit for Real.
Sorry, you mean the 1201(f) provision that refers to (a)(1). If Real doesn’t fit 1201(f), then, in the eyes of the DMCA, circumvention is circumvention, and putting it into another DRM format is factually irrelevant.
One assumption here is that they did, in fact, reverse engineer Apple’s software. It’s also at least as likely that they simply analyzed and compared the m4p and m4a data files until they were able to replicate (independently) the protection mechanisms. Whether that falls under the category of reverse engineering is in question.
If that is the case, I believe that no “reverse-engineering” of Apple’s software has actually taken place, so 1201(f) wouldn’t be relevant. Even if reverse engineering took place, it’s possible that they still fit 1201(f).
Given the statement 1201(f)(1), “a person who has lawfully obtained the right to use a copy of a computer program” and the fact that the lawful acquisition of the software involves “agreeing” (depending on the validity of shrinkwrap/clickwrap licenses) to not reverse-engineer it, does the reverse engineering exception of the DMCA trump the license, or not?
I do not believe that putting it into another DRM format is really relevant at all, other than perhaps that is demonstrates good faith.
And finally, did they actually circumvent Apple’s protection? They are *using* Apple’s DRM protection algorithm without a blessing, not circumventing it. Apologies for the analogy, but it’s as if Apple has created a custom padlack, and Real has figured out how to make a compatible padlock. I do not see the circumvention there. Circumvention would be creating a tool that breaks the lock.