A Copyfighter’s Musings

Ernest covers the most important points  about Real’s Harmony and I chipped in a few in the comments. As we discussed, it isn’t clear that there’s a DMCA violation here – if anything, it’s an (a)(1) access control violation.  But, it seems they might have simply created a conversion tool based on Hymn without doing any circumvention or reverse engineering themselves.  If that’s the case, there no a contract issue either.  So, a widely-available circumvention device helped create a DRM evasion device that doesn’t circumvent.

Which is not to say that those are actually the facts or that Apple won’t sue.  From a more general standpoint, Apple could argue, in a twisted but perhaps intellectually consistent way, that it’s not fair for them to be able to make FairPlay files but for him to not be able to make Helix files. And then Rob Glaser could say, but you never asked. 

But how could Glaser say that with a straight face to Apple? In that dynamic, Apple has all the leverage. They have the market share in the Music store and portable player markets.  Why would Jobs care about Real’s format?  Real’s nothing to Apple.

As long as the services operate in an environment in which they must use some form of DRM, there is little incentive for them to share one DRM. The only way is if everyone decided, collectively and simultaneously, to drop their own formats and share one format. But I doubt either Apple or Microsoft would want to do that.  They have all the leverage here – it’s not in their interest to have one format here.

That’s why, in my view, ending the format conflicts won’t happen in the foreseeable future unless the music industry, not the services, choose to drop the DRM.  Even in the long term, if DRM sticks around, the format conflict will only end temporarily when enough consumers settle on a particular format, possibly creating some quite terrible lock-in; the conflict will then erupt again when a new service comes out that consumers cannot take advantage of because of the lock-in.

Regardless, will this move benefit Real in any way?  I suppose.  It’s basically a last ditch effort by them. The only reason for them to have used the Helix format in the first place is if they wanted some control over formats. Otherwise, why not just give in in the first place and license WMA?  Now, they see that they don’t have the market share to push Helix on their customers, so they have to make do.  Consumers benefit a little, but, as Ernest makes clear, Harmony is mostly hype.

Filed by Derek Slater at 10:48 pm under General news
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