Fair Useless


In the late ’80s, Karlheinz Brandenburg of the Fraunhofer Institute in Germany listened to Suzanne Vega’s “Tom’s Diner” more than a thousand times. He was perfecting a technique for audio compression that could reduce a CD track’s file size by about 90 percent while distorting Vega’s voice as little as possible. The result was the Moving Picture Experts Group Audio-Layer III format, or MP3, which has earned the highest form of infringement: Its name has become generic shorthand for audio files. Similarly, pocket-sized digital audio players are colloquially iPods, no matter who makes them, just like any pocket-sized cassette player was a Walkman. (A recent Merrill Lynch report noted that iPods are catching on even faster than Walkmans did in the early ’80s, and Apple’s rumored to be introducing a smaller, cheaper model with flash memory instead of a hard drive.)

But every big music and tech player is pushing MP3 alternatives now. Open-source culture tends to favor Ogg Vorbis, a “free, open, and unpatented” audio format. And the four major labels, Microsoft, and Apple would prefer that people load something a lot less free than MP3s onto their iPod equivalents. The iTunes Store, for instance, sells songs in Apple’s own proprietary format, AAC, with a digital-rights-management (DRM) scheme called FairPlay. (Download a 99-cent copy of “Tom’s Diner,” and you can only play it on your own computers; if you send it to your friends, it won’t play on their machines.) It didn’t take long for an enterprising, anonymous programmer to devise PlayFair, which removes the DRM from iTunes purchases; it was promptly cease-and-desisted. By then, though, it was far too late, and other anti-FairPlay programs are now easy to find.

In the second-time-as-farce department, both the neutered Napster and its creator, Shawn Fanning, have reappeared touting DRM systems. Fanning’s currently shilling for a technology called Snocap, meant to be used by peer-to-peer services. (Mashboxx, a not-yet-running system started by Grokster’s former head, will probably incorporate it.) Snocap is supposed to check sound files that users offer for “trade” against a central database, and indicate what other users have to pay to get them, and in what form. So, if you tried to download something called “T0mZd1n3r.wmv” from HotNYFolkies4U’s music directory, a Snocap-enabled system would know to charge you a dollar.

In other words, all the expense of iTunes with the extra unreliability of Kazaa, and a way for labels to avoid having to pay for bandwidth themselves. Former RIAA chief Hilary Rosen is advising Snocap, and Universal Music Group is already cutting a deal; Fanning, talking about “trying to create this platform to allow the market to really explode,” sounds like a pod person (lowercase p). Meanwhile, an online marketing company with the appropriately dreadful name Wurld Media is launching a division called Peer Impact, which will also let users “share” files for a dollar a song; so far, they’ve gotten the thumbs-up from Universal, Sony BMG, and Warner Music Group.

Napster’s name and headphone-devil-kitty logo are now owned by the former CD-burning-software company Roxio, which has pasted them onto a trial run of a new business model: music by subscription. For $10 a month, you can listen to unlimited (major-label) tracks on your computer. If you ever stop shelling out for service, though, your complete Suzanne Vega collection becomes unplay-able. You can also buy individual tracks for keeps for a buck apiece, and transfer them to a portable player—but they’re in Windows Media format, which requires one of the very few digital audio players that aren’t iPods. And if you don’t buy a particular track, you can’t play it on your not-quite-a-Pod anyway.

That’s expected to change when Microsoft finally introduces the “Janus” technology it’s been promising for a few years; the idea is that your quasiPod will have a “secure clock” inside, so you can’t hack it to keep playing “Tom’s Diner” forever after your subscription runs out. (Janus will probably be linked to Microsoft’s MSN Music Store, which is currently in beta.) Month-to-month leases may appeal to labels as a way to save money on royalties. If they sell a digital download, they have to pay the artist and song publisher; if they’re just renting it, it’s not clear they owe anything.

The big question, though, is who the labels expect to buy into these schemes. Every one of them has a fatal and unavoidable flaw, which is that no form of DRM actually works. If you can hear a song on your stereo (or pod), you can make a copy of it with identical sound quality. All you need is a $2 cable with a headphone plug at each end and some free audio software like Audacity, and you’re back in the days when you could take fair use for granted: once upon a time, before the rain began.