Commentary

The Day the Music Dies

By Timothy B. Lee
This article appeared in the August/September 2008 issue of Reason magazine.

This fall customers of the now-defunct MSN Music Store, Microsoft’s abortive attempt to compete with iTunes, will be in for a nasty surprise: They will no longer be able to transfer their music to new computers. Worse, thanks to the 1998 Digital Millennium Copyright Act (DMCA), no one else will be allowed to give them tools to work around the problem.

Someone in Microsoft’s marketing department must have a dark sense of humor, because just four years ago the company started calling its digital music format, its proprietary method for downloading, storing, and playing digital music, “PlaysForSure.” The name was intended to highlight the fact that, in contrast to the iTunes-iPod combo, PlaysForSure was supported by dozens of music stores and device manufacturers. Songs purchased from Rhapsody, Yahoo! Music, or the MSN Music Store could be enjoyed on players manufactured by Samsung, Dell, Sony, or Creative.

The DMCA needlessly restricts consumers’ freedom to listen to their legally purchased music on the devices of their choice.”

In spite of this, Apple’s iPod continued to outsell all the PlaysForSure players put together. So Microsoft reshuffled its strategy in 2006, releasing a new music player called the Zune. Convinced that the tight integration between iTunes and the iPod was the secret to Apple’s success, Microsoft abandoned the PlaysForSure approach, shuttered the MSN Music Store, and built the Zune around yet another proprietary format.

As a result, music in the PlaysForSure format will not play — for sure or otherwise — on a Zune music player. Up to here this is just an ordinary business story of technological obsolescence, certainly nothing to be outraged about. Companies drop old product lines all the time, and sometimes that means customers are stuck with compatibility headaches. In ordinary circumstances, you would expect entrepreneurs or volunteers to pick up Microsoft’s slack and offer software to convert those old recordings to another format.

But the Digital Millennium Copyright Act transforms what would normally be a promising business opportunity into a federal felony. Not only will PlaysForSure music not play on a Zune, but the DMCA makes it illegal, punishable by up to five years in jail on the first offence, for third parties to offer utilities to bridge that gap. The PlaysForSure format includes copy protection technology that was supposed to deter piracy. Under the DMCA, no one may “circumvent” a copy protection scheme without the permission of the platform’s owner. Moreover, it is illegal to “traffic” in software that performs this function.

That means that customers with PlaysForSure-formatted music have only three options. They can content themselves with the dwindling number of PlaysForSure-compatible music players still left on the market, such as the Sony Walkman or Creative Zen. They can burn all their music to CDs, then re-rip them to an open format — not just a time-consuming process but one that will reduce the quality of the recordings. Or they can break the law and download illegal software to convert their music to an open, widely supported format such as MP3, allowing their music to be played on any music player, including iPods and Zunes.

As if all that weren’t enough, this fall Microsoft will switch off the license servers that allow customers to “authorize” new computers and operating systems to play music bought from the MSN Store. Customers who replace their computers will find themselves with no legal way to play their music.

It’s a rich irony that users who choose to break the law and download music from peer-to-peer file sharing sites don’t face these inconveniences. The DMCA ostensibly was aimed at stopping illicit file sharing, which continues unabated. There is no evidence that the law has kept music off peer-to-peer networks. There is no evidence that PlaysForSure has kept music off peer-to-peer networks either. And music on peer-to-peer sites is typically available in an open format such as MP3, which can be played on almost any device. Thus the DMCA’s only substantial impact on the music marketplace has been to inconvenience those who made the mistake of purchasing music from a legal online service.

There is growing recognition of the absurdity of this state of affairs. Copy protection has become so unpopular that after years of insisting that all music downloads come in copy-protected formats, last year the major labels began allowing some online retailers, including Apple, Amazon, and Wal-Mart, to sell music downloads in the open MP3 format. But as the PlaysForSure debacle demonstrates, there is still a great need to reform copyright law. The DMCA needlessly restricts consumers’ freedom to listen to their legally purchased music on the devices of their choice. In the name of fighting illegal downloads, it has created a big incentive to download music illegally.

Update: Between the time this story went to press and this posting, Microsoft has announced plans to support PlaysForSure customers through 2011. For more information, go here.

Timothy B. Lee is an adjunct scholar at the Cato Institute.