To readers of LWN it is nothing new that DRM (digital
rights/restrictions management) systems restrict
consumer choice and limit even lawful access to works controlled by
them. Now, however there are encouraging signs that some governments
are starting to understand this problem.
In Norway (and other Scandinavian countries) there is a "Consumer
Ombudsman", his purpose is to ensure that companies act fairly and
lawfully toward consumers, and in particular that they adhere to the
As it turns out, using DRM may pose problems here, especially when
prevent the user from bypassing or disabling the DRM. According to
the Ombudsman, the terms of service used by the iTunes Music Store (iTMS) are
illegal. Furthermore, the DRM used on the downloaded songs further
violate the same laws. The situation is similar in Sweden and
Denmark as they have nearly-identical consumer-protection laws, and iTMS
Sweden and Denmark are currently launching similar inquiries.
An 11-page letter of complaint was sent to iTMS on May 30th. The
letter became publicly available on the 7th of June and is very
encouraging reading. I will summarize the main points of interest for
LWN readers as the
letter itself [pdf, 11 pages] is available only in Norwegian. There
is however a press
release available in English.
and the practical restrictions that arise from the DRM combine to
create what is an unbalanced, one-sided and grossly unreasonable
agreement for consumers. This is a general impression, conveyed by
the agreement as a whole. Additionally to this, the Ombudsman mentions
around a dozen points that are individually unreasonable and/or
illegal. Many of these points have no relation to DRM, but a few are
iTMS reserves the right to, at any time, even after the sale,
Norwegian contract law that a contract is binding, and that changing
a contract after it's been agreed upon requires the consent of both
parties. The ombudsman points out that, in its extreme consequence,
this term alone removes all rights of the consumer. Even those
rights you appear to have at the time of purchase can at any later
the player software and DRM. For example, the software may refuse to
not permit that. A concern is that future updates to
player software might cause customers to lose functionality that
they previously had. Saying that you are free not to upgrade is not an
acceptable solution if upgrading is a prerequisite for playing newer
songs. This would put undue pressure on the consumer to accept the
"upgrade" even if the upgrade will remove many of his previous rights.
The Norwegian iTMS can only be used from Norway. This restriction is enforced
by only allowing Norwegian credit cards to be used on the Norwegian iTMS, by the
discrimination of consumers, and an artificial barrier to trade. Both
are at odds with EU free-competition law. Currently the same song is
sold for £0.79 in the UK and $0.99 in the USA, a price-difference of
46% at todays exchange-rate. A customer from the UK is prevented from
buying cheaper from the American iTMS.
The DRM on the music ensures that it plays on only a small number
of devices, mainly those produced by Apple themselves. Selection of
technical protections where licenses are not given to third parties,
and where no open source players exist (lack of open source players is
explicitly mentioned) can lead to a problematic locking of
content and players; in order to listen to your music you
might be forced to buy a certain player. Not because it's the one you
prefer, but because it's the only one supporting the DRM.
Some content is "iTMS exclusive", which is problematic as long as
that means only being playable on a limited number of devices. A
result could be that such content is not playable at all in the future,
should Apple choose not to cooperate. If it does not generate a profit
for Apple to make old content available on the next generation of
platforms, the result could be the permanent loss of the content.
"Cultural content has importance to society above and beyond
its ability to generate a profit," the Ombudsman writes; he is also
critical of developments which might end up limiting access to
cultural content that is not profitable.
He notes that the lack of licensing of the DRM means that in
the future we will either get a monopoly in music distribution, or
consumers will be forced to buy two or more playback devices to be
able to listen to the music they want. And, for good measure, it
is currently easy to remove the iTMS DRM so the restrictions may end
up harming lawful consumers while having little or no effect on
large-scale illegal copiers.
The next thing that happens is that Apple needs to answer the
letter by June 21st. The Ombudsman's first choice is to reach an
agreement with Apple and avoid the need to take legal action. It is
pretty hard to believe that outcome will be possible in this case. If an
agreement is not reached, the Ombudsman will file a formal complaint
with the Market Council. The ruling of the Market Council is legally
binding unless appealed to the courts within 3 weeks.
neither is the use of DRM. Similar terms and similar technology are used by
several of the main competitors to iTMS. According to the Ombudsman,
from the other companies if they are successful with iTMS. They choose
to start out with iTMS simply because it is the largest actor.
While the issues the Ombudsman raises are valid and important,
there is still something missing. The lack of open source players is
mentioned, but only in passing as part of the discussion of the
DRM used not being widely licensed. It is not stated explicitly, but
the impression given by the letter is that removing the possibility of
retroactively changing contract terms and licensing the DRM under
terms would go a long way toward satisfying the Ombudsman's objections.
The larger good coming from this is thus likely to be the increased
awareness of all the issues surrounding DRM. At this stage, increased
general knowledge of DRM can only be a good thing.
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