If You Add DRM To Circumvent DRM, Is It Circumvention At All?

from the follow-the-logic dept

Mon, Oct 23rd 2006 4:04pm — Mike Masnick

Earlier this month, we wrote about "DVD Jon" Lech Johansen's latest effort to reverse engineer Apple's FairPlay DRM so that others could offer copy-protected downloadable music that would play on the iPod, basically in an attempt to get rid of the walled gardens of music we discussed earlier today. Plenty of people wondered if Apple would sue, but in a Fortune article, Johansen makes it pretty clear that he did everything according to the law. Specifically, they didn't "circumvent" the copy protection, but reverse engineered it, creating a clone. As he says, they're not removing DRM from anything, but actually adding DRM to other content -- and that appears to be legal by the letter of the law. The Fortune article, though, raises plenty of questions about whether or not that will keep Apple from suing and (perhaps more importantly) whether or not anyone will seriously be willing to license the cloned DRM and risk pissing off Apple or being sued themselves. Considering that it really would be easier to follow the eMusic path of offering unencumbered MP3s rather than this convoluted path of adding DRM to get around DRM restrictions, hopefully there really isn't a big need for this DRM to route around DRM. Still, if it does go to court and is found legal, it raises questions about where the borderline is between circumvention and reverse engineering. If you reverse engineer copy protection, but then open up more rights using it, which does it fall under?

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17 Comments

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Anonymous Coward, 23 Oct 2006 @ 4:20pm

Interoperbility is the key and the Record Industry and MPAA members in conjuction with the consumer electronics industry dont want another Apple on thier hands so they have formed the Coral Consortium and already have Microsoft DRM interoperiblity and thier own Marlin DRM.

http://www.coral-interop.org/

Check out the Member List (Comcast is also member)
http://www.coral-interop.org/main/membership/index.html
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Anonymous Coward, 23 Oct 2006 @ 4:44pm

I guess Record labels now have the chance to jack up the price past 99 cents like they want.
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timberwolfblues, 23 Oct 2006 @ 5:17pm

Ading DRM to get around DRM
The RIAA, Apple and everyone else have missed a huge moneymaker/appeasement oppertunity. If someone or some company could hack up a website that offered unlimited downloads of a standard format for say somewhere between $10 and $30 a month I think that the RIAA would sleep better and consumers would be much happier and be able to get what they when they want it. Home computing (especially with the introduction of Windows Vista) is heading this way in my humble opinion.
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Cleverboy, 23 Oct 2006 @ 5:49pm

Blinding Insanity
The trains already left the station. Just let it ride for christsake. If what he says is even true, who in their right mind would want to run the risk that their songs/media would simply NOT PLAY in a new iPod? Clearly, its FairPlay or vanilla mp3's or AAC's for those offering iPod content. Using Son of Fairplay is a one-way trip to the nut factory... or the court house, when the class action lawsuits fly. What would you do to remedy a fatal design flaw? Offer to strip the DRM off your customer's purchased music as a final solution. Eh.
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Cleverboy, 23 Oct 2006 @ 6:08pm

re: Coral Consortium
Anonymous Coward:"Interoperbility is the key and the Record Industry and MPAA members in conjuction with the consumer electronics industry dont want another Apple on thier hands so they have formed the Coral Consortium and already have Microsoft DRM interoperiblity and thier own Marlin DRM." Did you read that DRM watch article? Y'know... the one that discusses the pre-requisites of inclusion for DRM implementations? Check out this sentence... "Interoperability can be achieved with the Coral approach only if the DRM has an SDK that exposes a full set of DRM functions, for both content and license generation as well as content use." Not that they had Microsoft's support to begin with, but as Steve Job's predicted at the beginning of the year, Microsoft has now gone proprietary with its Zune offering. This is all one heaping mess for interoperability aspirations unfortunately. Discussions on "open source" DRM have turned into a political football and ideological poison to the free software movement.
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Noel Le, 23 Oct 2006 @ 7:42pm

Good post. I think its great DVD Jon did what he did, and to my knowledge, he acted under the legal protection of the DMCA.

Kind of odd. I kind of hope this goes to court just to establish legal precedent. Can anyone tell Apple to sue, and then lose on purpose? (just kidding).

In any case, public policy considerations inform copyright law more than many realize. The DMCA is more flexible than its critics suggests.

I note that DMCA critics generally interpret any ambiguity in the circumvention/exemption provisions as barring activities not clearly falling under them. This is just pessimistic, and unfortunately, has shirked reverse engineering activity more than DMCA case law.
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meh, 23 Oct 2006 @ 8:52pm

it exists!
"Ading DRM to get around DRM by timberwolfblues on Oct 23rd, 2006 @ 5:17pm
The RIAA, Apple and everyone else have missed a huge moneymaker/appeasement oppertunity. If someone or some company could hack up a website that offered unlimited downloads of a standard format for say somewhere between $10 and $30 a month I think that the RIAA would sleep better and consumers would be much happier and be able to get what they when they want it. Home computing (especially with the introduction of Windows Vista) is heading this way in my humble opinion."

ever heard of emusic?
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Mike (profile), 23 Oct 2006 @ 11:13pm

Re:
I note that DMCA critics generally interpret any ambiguity in the circumvention/exemption provisions as barring activities not clearly falling under them. This is just pessimistic, and unfortunately, has shirked reverse engineering activity more than DMCA case law.

Uh, Noel, that's a blatant misrepresentation and you should know better. Most DMCA critics do NOT interpret any ambiguity as barring activities.

Instead, they point to the very, very, very REAL chilling effects that those ambiguiities cause. While it's great that Jon is willing to take the chance, just think of how many others did not. That's a huge blow towards progress and a huge blow against a market that should be much, much bigger than it is.

As a supposed "free marketeer" I still don't quite get why you're so against the free market in this case, instead preferring gov't bound monopolies.
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satan, 24 Oct 2006 @ 12:09am

the people
The needs of the many outweight the needs of the greedy
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Andrew, 24 Oct 2006 @ 12:55am

Applying a DRM wrapper is not circumvention
DVD Jon can apply a clone of the FairPlay DRM wrapper. This is not circumventing DRM. If it's circumventing anything, it's the closed content ecosystem that Apple created.
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Az, 24 Oct 2006 @ 1:48am

Look's Like I'll Have to turn to Piracy once again for my music instead of legal stores =3
DRM this, DRM that, its jsut confusing people, the average user they want is going to get so frustrated that it doesnt work on anything else but their ipod that they will stop buying it online and pirate, the easy way to get their music.
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James, 24 Oct 2006 @ 5:14am

Is this anything like Nintendo went through when 3rd party developers started producing Gameboy Cartridges?
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Solo, 24 Oct 2006 @ 1:56pm

Mmm... I'm not sure 'reverse engineering' is part of the rights you are granted when Apple lets you use their software.

Apple can always claim DVD Jon is selling software based on unauthorized reverse engineering of their software. And this is using trade secrets of Apple etc...

Plus I would not be surprised if it did not infringe upon a few dozen well chosen Apple patents either.

And in any case I'm not sure how much legitimacy the _copy_ has faced to Apple's original.
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Solo, 24 Oct 2006 @ 1:57pm

Don't get me wrong, I have DRM too. I just think the DVD Jon stunt is a smidgen misguided.
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chris (profile), 24 Oct 2006 @ 2:13pm

if you ask apple...
i'm thinking that anything that might slow down the sale of ipods is going to cause apple to summon it's winged monkeys. props to DVDJon, that move is sack-tastic.
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Noel, 29 Oct 2006 @ 10:19pm

Mike, the position I was depicting spells Tim Lee's view. His whole argument to repeal the DMCA is because of its lack of clarity.
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fobos111, 19 Jul 2007 @ 2:31am

Re: Applying a DRM wrapper is not circumvention
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