Real’s Potential Legal Arguments and Principles

Building off what I said yesterday about Real’s press release, I presented two questions to a Real executive on pho regarding a message he had posted supporting Harmony and interoperability.

“1. Why did Real sue, under the DMCA, creators of interoperable software
 Streambox created Harmony-esque software for Real’s streaming
files.  If interoperability is permitted by the DMCA and is something that
you’re in favor of, it seems totally at odds with your actions against

2.  Why did you implement your own proprietary DRM standard, Helix?  Why didn’t
you act in concert with other music services and tech providers to use a more
open standard?
(Although, no DRM can be truly open, see: Freedom-to-tinker)”

I haven’t heard back yet, but I’m interested in their answers. I have argued that they adopted Helix for the same reasons Apple uses FairPlay – to control the other markets and generate licensing revenue. But perhaps there’s some other strategy I don’t know about.

As for the former question regarding Streambox, let me attempt to provide answers Real could provide.  Though these arguments may provide Real with some wiggle room in court, they still don’t map particularly well to the principles stated in their press release yesterday. (Note that I am assuming that the possible violation was in circumventing to analyze the FairPlay DRM.  As discussed previously, it doesn’t seem like Harmony itself would be a circumvention device, and thus there is no 1201(a)(2) or 1201(b) issue.)

1.  Real never circumvented Harmony; they simply built a product based on Hymn and other public information. Thus, there is no conflict with 1201(a)(1).  This may be true, but it still doesn’t explain why they would support interoperability here but not in the case of Streambox.

2.  Real’s intentions in creating Harmony were pure. They simply wanted interoperability.  Streambox allowed people to record streams that they otherwise could not and thus you could infer wrong intentions. Similarly, DecSS could be used for any purpose associated with decryption, not just interop. On its own, this doesn’t matter in the eyes of the DMCA.  Circumvention under (a)(1) is circumvention regardless of the intentions.  321 Studios seemed to have fine intentions, building copy protection into their DVDs, but that didn’t save them.

3. Harmony fits the definition of 1201(f) because it is for the “sole” purpose of interoperability.  Again, unlike Streambox and DeCSS, the circumvention needed for Harmony was solely intended to make certain files work with other devices.  Harmony even puts an analogous layer of DRM restrictions on the songs it converts.

Despite this, Harmony still does not seem to fit the terms of 1201(f). As noted in Remeirdes, 1201(f) only exempts computer program to computer program interoperability. The definition of computer program in Title 17 is rather narrow.  It applies to executables, but not data.  Remeirdes stated plainly that it does not apply to interop with movies. Thus, it would not seem to apply to interop with music files. (See 82 F. Supp. 2d 211, 218: “Finally, and most important, the legislative history makes it abundantly clear that Section 1201(f) permits reverse engineering of copyrighted computer programs only and does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies.”) (see also ChillingEffects discussion)

If Real can make this argument successfully in court, more power to them.  However, it appears to me as a fairly restricted view of the “well-established tradition” of interop. 

Take music editing software.  Because of DRM, this software can’t open music files to edit them.  One could add in a feature that decrypted the files so that the editing software could interoperate – that is, read the files and edit them.  But, unlike Harmony and like Streambox, this editing could now also create copies of the songs.  Moreover, these copies would be unencrypted.  If you take Harmony as your benchmark of legality, perhaps this editing software could be legal if it layered DRM on top of any song produced using parts of the decrypted song. 

As you can see, the scope of this interop exemption seems rather narrow.  To me, this view creates an odd dividing line.