A few years ago, my friend copied a bunch of music from his brother’s hard drive to his new iPod. His brother has awesome taste in music, and since my buddy didn’t have to pay anything for it, I thought he got a pretty sweet deal. We were talking about this while driving around and listening to the White Stripes.

“Dude!” he said all of a sudden. “This sucks! I can’t play blue orchid on this iPod cuz I don’t have the license for it.”

“Ah shit man,” I replied. “It’s because of DRM.”

“DRM sucks.”

Yup. It does. Used to be that if you bought a CD you could do whatever you wanted with it. Listen to it anywhere, let your friends burn it, or burn it yourself and hand out the tracks. Music CDs (not CD-ROM media) by definition cannot have DRM applied to them because its not standards compliant. Guessing the music industry didn’t like this too much and was getting ready to release another CD technical standard with built in DRM.

But they didn’t have to. People dropped their CDs and started using digital files. When online music stores appeared on the scene, they just limited they ways you could use the files you bought from them. Let’s look at how:

Exclusivity – If I download “Fell in Love with A Girl” on x music downloading site, I can only play it on user end hardware or software affiliated with that site. For a while (maybe still now) music downloaded using Kazaa could only be played on Windows media player. Music from the Wal-Mart and Napster stores can only be played on products with Microsoft “plays for sure” certification, something iPods don’t have. iTunes’ version of DRM, fairplay, limited the number of devices an individual song could be stored on. Apple also only allowed files downloaded through iTunes to be played on Apple products and a select few Motorola phones.

Fees – Copies of music have a price. Napster charged an extra $5 dollars per month if you wanted to play the music you downloaded through it on a portable music player. Good thing I can fit my laptop in my pocket when I got to the gym. Napster actually had the worst deal ever: you lost access to all the files downloaded using it if you didn’t pay your monthly subscription fee. That’s just lending music on a monthly basis.

A lot of music stores recognized that DRM-free music has its price. Apple initially sold such files at an elevated price. Now all files on iTunes are DRM free and popular songs cost $1.29, thirty cents more than the standard price per song the store was unveiled with. Napster’s done away with its DRMed wares too.

I’m sure there’s someone out there asking, “Where did you go, DRM’d music? I miss you.” I’ve got a few guesses. Stores probably realized that DRM’d music is really annoying for users. It limits where and how they can play it and makes copying your music from your old computer to a new one really painful. They also realized that people would be willing to pay a bit more for music without DRM. In Apple’s case, thirty cents more. And I bet there’s some calculation out there that says the extra thirty cents generates enough money to outweigh revenue lost due to piracy. The last reason is the iTunes stores. It’s got 25% of the digital music market in the U.S. If it doesn’t have DRM’d music then any site that does is going to lose to it. Also, don’t forget the iTunes store’s buddy, the iPod. It has a whopping 74% of the U.S. mp3 player market, further cementing Apple’s hold on the stuff we’re listening to.

Looks like Apple is calling the shots in the online music market. But at $1.29 per song, who’s using it? Look at the numbers again.

iTunes market share = 25%
iPod market share = 75%

Most people who download music have a music player. Most people with iPods use iTunes. If most people with iPods bought music from iTunes, its market share would be far more than 25%. A lot of pirates still in town.

On January 3, George Hotz, or geohot as he calls himself, a hacker previously involved in the effort to jailbreak the iPhone, released the private key to the PlayStation 3, using techniques described by the group fail0verflow at the 2010 Chaos Communication Congress.  Essentially, possession of the key allows users to create and run signed software on their PS3s without the use of any sort of external USB device–i.e., to run the software as if it had been distributed by Sony.

There is every indication that this is why the parties involved exploited the, well, exploit–so that they and others would be able to use the machines that they own to run whatever software they want to write for it or share with each other (fail0verflow claims to have developed the hack in order to allow PS3s of all firmware versions to run Linux).  Of course, one of the side effects of the release of the key is that users can now, if they so choose, use it to run pirated versions of PlayStation 3 games on their machines, which Sony is loathe to allow.

In a response eerily reminiscent of that of Universal and its cohorts following the release of DeCSS and of that of the MPAA and AACS LA following the release of the AACS cryptographic key (the key that protects Blu-Ray DVDs), the corporate machine leapt into action (after one embarrassing gaffe on Twitter), and fired off lawsuits against both fail0verflow and geohot, causing the latter to start a legal defense fund.

This case lies much closer to that of AACS than that of DeCSS–the court ruled, in Universal v. Corley, that DeCSS was not protected speech because, among other things, the DMCA’s restrictions on circumventing technologies was “content-neutral,” and DeCSS seemed to have been distributed for the purpose of redistributing copyrighted DVDs, at least according to the District Court.  In the case of the AACS key, while the MPAA and AACS LA issued numerous DMCA takedown notices (notably to Digg), this was the only legal action taken: no lawsuits were filed, and the legal status of the key remains up in the air.

In the case of the PS3, the stated purpose for circumventing the “technological measures” that “effectively control” access to the PS3 was to get the machine to run Linux–undoubtedly, this is not in violation of any copyright law.  But will this be its primary use? The court tells us in MGM v. Grokster that we must consider not only whether a noninfringing use exists, but its relative frequency compared to that of infringing uses.

Will most users use the key to play pirated games?  More importantly, does it matter?

Similar to the avalanche of posts of  “09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0” on Digg following the MPAA’s response to the release of the key, a…flurry? of “46 DC EA D3 17 FE 45 D8 09 23 EB 97 E4 95 64 10 D4 CD B2 C2” posts appeared on Reddit in the aftermath of geohot’s publication of the key.  Both communities felt a sense of injustice that posting a 128- or 160-bit key, a number short enough to scrawl on the back of one’s hand, should subject the poster to prosecution.

On the other hand, the DeCSS program, in its shortest incarnation, is only 434 bytes, or 3472 bits, only about 20 times as long as the AACS and PS3 keys, and the court found that it was illegal–just as a clever Digg user created a flag using the hexadecimal key, or how I shamelessly copied the idea to make a flag of my own, so too did protestors of the DeCSS decision create MIDIs, plays, and even a haiku of the program.

When everything is expressed in terms of numbers, anything can be expressed in terms of anything else.  The court has ruled that some numbers are illegal, so where exactly is the line?  If I write some protection protocol with a cryptographic key of “1”, can I go around issuing DMCA takedown notices to every website that has the audacity to post a “1” somewhere? Would that even count as an effective technological measure? Probably, since knowledge of the key is generally not enough to crack the code–one must also know where to put it, which requires some amount of proficiency with computers (arguably more proficiency than most users possess).

So where is the line? Is it at 10 bits? 100? 1000? We already know it can’t be any greater than 3472.  The problem is, wherever the line is drawn, it will be arbitrary–any attempt to exclude some kinds of speech from protection will, when taken to its logical extent, inevitably result in some sort of restriction that seems ridiculous and unfair.  There will always be some tricky end case.

And programmers are great at coming up with tricky end cases.

Having used Yale library for the past four years, I’ve come to accept as fact that the wonderful invention of the e-Book allows all library users to bypass the logistical obstacles that accompany the borrowing of physical books – unavailability when checked out by others, the trip of physically finding and retrieving the title from its shelf, the revulsion of thumbing through dilapidated  volumes with unidentifiable stains. More than once, I’ve taken Yale classes in which professors have assigned books that are available online from the Yale library. The strategy for those readings has always been to click on the link whenever I want, at my own pace and timing. The only “hassles” were perhaps that the pages cannot be printed, and that some versions do not allow electronic markings or highlights. Small price to pay for the convenience offered.

Interestingly, and much to my dismay, this universal access model to library e-Books does not extend much farther beyond the university setting. Although e-Books are not yet widespread among public libraries, the ones they do occupy maintain heavy restrictions on usage, as if these electronic files were physical objects.

Take the New York Public Library as a case study. Although the library has 100 titles in e-Book format, it offers them in very limited quantities. For example, currently there are just two e-copies of Blackveil (published Feb. 2011). Both are unavailable, with two “patrons” on each waiting list. The older, but more popular Artemis Fowl (published Aug. 2009) is even more scarce; there is just one currently unavailable copy, with eight on the waiting list.

Perhaps even more ludicrous are the policies on checkout and return. There are no standard lending periods, as these can vary from title to title depending on individual licensing agreements. Furthermore, two of the three provided e-Book formats (OverDrive and Mobipocket) “cannot be returned early. They are automatically returned at the end of the lending period.” So assuming that Artemis Fowl has the standard library lending period of three weeks, I’d have to wait until September 2011 for three weeks of access to a PDF copy? What???

Oh wait… I just got it here.

Granted, this version is in a much plainer font, and there are no page numbers. But the content is exactly the same. How did I find this? By Googling “artemis fowl pdf” and clicking the third search result. Clearly, DRM is not serving its purpose. Is it really necessary to ensure that libraries abide by DRM for their e-Books when cases of circumvention abound so prolifically on the Internet?

Functionality aside, the more important question is whether DRM has a place in the public library domain. The whole point of libraries is to offer communities a local learning center for free. Specifically, the New York Public Library aims to “inspire lifelong learning, advance knowledge, and strengthen our communities.” The digitization of books should, if anything, only help accelerate this mission of educating the community. Why, then, is the new medium of communication being subject to the same delivery constraints of old media? Why, when electronic files can be accessed instantaneously and multilaterally, should people have to wait for months to take their turn?

Library e-Books belong in their own category, separate from print books, and they deserve their own lending policy – one that makes use of the advantages that they offer in speed and plurality of transmission. The Yale model of universal access isn’t necessarily ideal for all public libraries, but the old print model of lending for e-Books simply needs to go.