NEAL CONAN, host:
Apple chief Steve Jobs posted a letter on Apple's Web site yesterday called "Thoughts on Music," and those thoughts might be sweet harmony to many eager downloaders. In the letter, he calls on the big four media companies -Universal, Sony BMG, Warner and EMI - to put an end to what's called DRM, the digital rights management system.
DRM protects media files and prevents music bought online from playing on different brands of MP3 players. Between DRM, BMG, MP3s and the rest of the alphabet soup, we've decided to call in an expert to decipher all the tech speak and tell us what Jobs is actually talking about.
James Boyle is a professor of law and co-founder of the Center for the Study of Public Domain at Duke Law School, and it's nice to have you back on the program today.
Professor JAMES BOYLE (Law, Duke University) It's nice to be here again.
CONAN: And James, break it down for us. What is DRM?
Prof. BOYLE: Digital rights management, as you said. This is simply something which is designed to make it hard for you to do things with the content, whether it's movies or music, that the owners of that content don't want you to do, which could be copying it or it could be fast-forwarding through the FBI notice on your DVD or playing it on a different region player. And it's basically trying to control consumer behavior.
CONAN: Control consumer behavior and tie consumers to whatever brand they've purchased?
Prof. BOYLE: Well that - you can do that. I mean, obviously, DVDs play on lots of different players, but all those people have to make a deal with the people who control the content-scrambling system that DVD players run in order to play the DVDs.
Apple, which has Apple's iTunes, of course, does not play on other competing music players, and that's often a strategy which media companies and hardware companies use to try and tie people to their platform. So you've got your iTunes library, and you can't move it over to a Zune or to any other competing music player.
CONAN: Well in that sense, is Steve Jobs saying well, you know, let's - isn't he undermining iTunes?
Prof. BOYLE: Well, the letter is actually brilliant. I mean, unsurprisingly so from Steve Jobs. It's actually trying to sort of placate two different communities at once.
Part of it is placating the Apple faithful who, as any Mac user out there will know, Apple users pride themselves on their stylishness, and DRM is seen as a kind of crude, clunky kind of Stalinist thing by many of them, and they just don't like stylish, cool, Apple being associated with it. It's sort of like having a Greenpeace person driving an SUV or a People of the Ethical Treatment of Animals spokesman wearing a fur coat. It just seems to be sort of aesthetically against the Apple ideal.
And so Steve Jobs is saying to them look, we'd love to be open, if only these records companies would let us…
CONAN: I see, yes.
Prof. BOYLE: So that sort of calms, or is supposed to calm, them down…
CONAN: Oh, so please don't throw me into that briar patch.
Prof. BOYLE: Exactly. While at the same time, he's saying to the European and other regulators, sort of saying you should open up this platform so that anyone could compete. So that, you know, if Rhapsody or Napster or anyone else wanted to try and give their songs to people on their iPods, they could.
And to those people, Steve is saying both well, it's not us, it's the record companies, and he's also saying we really don't think there's any kind of lock-in effect here or any anti-trust problem. We think this is all fine. Anyway, it's not us. We'd love to make it more open, but we can't.
So it's a lovely attempt to sort of placate two communities at once.
CONAN: We're talking with James Boyle, professor of law and co-founder of the Center for the Study of the Public Domain at Duke Law School. If you'd like to join the conversation, give us a call: 800-989-8255. And you're listening to TALK OF THE NATION, which is coming to you from NPR News.
And James Boyle, is all music, digital music, protected?
Prof. BOYLE: Not all. You can download digital music in an open format, and as Steve Jobs points in the letter, most people's iPods or music players are actually full of music which is not protected. You know, when you get your CD collection and you try to transfer it onto your iPod or onto your computer, you probably convert it into an open format. That means one that doesn't have these controls on it, like the MP3 format.
So there's a lot of music out there, some of it proprietary and some of it not, which is open, and Jobs actually makes the point that that's the majority of music. So he's also trying to say well, you know, this is only a portion of the market.
Of course, it's a big enough portion of the market for Apple to have sold more than a billion iTunes downloads. So even that little bit is still quite a large slice when you look at it.
CONAN: But excuse my ignorance here - but isn't - if I buy a CD, is that music protected?
Prof. BOYLE: It is not. That's simply - it's on there in a different format, a WAV format. When you put it in your computer and iTunes start, it will automatically download it into some different format. It's an alphabet soup of letters, AAC MP3, but the important thing is it will generally do so without putting any restrictions on it.
And so Jobs says to the music industry look, most of the music you're selling is still on CDs, and that music is effectively free for people to put into these open formats, and then they can do whatever they want with it, including putting it on file-sharing networks. And he says why not go whole-hog and give up DRM altogether because already, he says about 80 percent or maybe 90 percent of your music is effectively free of DRM. Why not just go the whole way and let consumers do what they want?
CONAN: Well, let's get a consumer or potential consumer on the line. This is Brian(ph), Brian's calling us from Oklahoma City.
BRIAN (Caller): Yes, I'm curious to see what Steve Jobs would have to say about people wanting him to release licenses for open source on his own software.
CONAN: Yeah, if you're going to be open, why don't you be open?
Prof. BOYLE: Yeah, that's a very good question, and that was one Apple has struggled without throughout its existence. I think he'd say that that's a - I think he'd draw a distinction and say that there's a big difference between the software and the music, and indeed one of the things that has happened over the last 10 years is it used to be that Apple sort of positioned itself as against Microsoft by saying, you know, they're the corporate behemoth, and we are the nimble vision of freedom.
And now so-called open-source software or free software such as Linux is of course much more open, much freer. Consumers have much ability to tinker with it than they do with the Apple operating system, and it may be that he's getting some pressure on that front.
But at the moment he's concentrating only on winning the music wars by, as I said, dealing with both of the communities who've been criticizing him.
CONAN: So he wants other people to give up their intellectual property rights but not necessarily his.
Prof. BOYLE: Well, he'd say, and I think on this let me say I'm with him. He doesn't want people to give up their intellectual property rights. He wants them to give up a particular way of protecting them.
I think what he's saying is the music that you have on your CDs, that's copyrighted music, and you paid for it, but you're not stopped from - you know, you can put it onto your computer and transfer it onto another computer and burn it to a mixed CD, and that's a freedom that is given to you because it's not - the file isn't protected technically.
Legally, it's still covered by a copyright. And I think what Jobs is saying is I actually don't think this digital right management stuff works very well. I think it irritates consumers, and I think you music companies could make a living basically out of convenience, the same reason people go to iTunes.
Here, 99 cents, I can find exactly the song I want. I know it's there, I know it's of good quality, and I can just download it; and that they would do that even if it was in an open format and so there were potentially downloads out there. Because he's saying well, look, you can have those downloads anyway. People just rip them from CDs.
So I think he's not saying let's go to a world without intellectual property. He's saying let's go to a world without sort of technological barbed wire around that property.
CONAN: Brian, thank you. Let's go, if we can, to - this is Susan(ph), Susan's with us from San Jose, California.
SUSAN (Caller): Yeah, I'm wondering if net of this is that the consumer pays more. And I'd like to say that if the consumer doesn't have to pay more, I'm in favor of it. These technology companies make a heck of a lot of money, and so does the entertainment industry. Why does the consumer have to bear the brunt of their misdeeds?
Prof. BOYLE: Well, I think Mr. Jobs would say that if people did follow what he says he wants, which is to make it more open, then the consumer would benefit because there'd be more competition. So you could get iTunes if you wanted, but then if Microsoft sets up its music service and sells the songs for 89 cents instead of 99 cents, you could go there.
And so right now we're in a position where basically - imagine you had to buy a different TV to watch each TV station, one for CBS, one for NBC - a different radio for each radio program. That's the situation we're in right now, and obviously that would be expensive for the consumer.
CONAN: And very quickly before we have to let you go, is there any possibility of this actually happening?
Prof. BOYLE: I think - not in the way that he describes. I think the music companies are still very nervous about moving everything on to completely unprotected formats, but I do think that the consumer annoyance at DRM is quite substantial. Sony recently put some digital rights management on a CD it released and caused an enormous furor and upset a vast number of people.
And I think the companies are beginning to think - this is an old analogy, I didn't come up with it - that their future is effectively selling the equivalent of bottled water. Water is free at the fountain, and you can download stuff illicitly off file-sharing networks, but people still go out there and buy bottled water because it's convenient, and it comes from a known source, and it's thought to be of high quality.
CONAN: James Boyle, thanks very much. We appreciate your time today.
Prof. BOYLE: My pleasure.
CONAN: James Boyle, professor of law, co-founder of the Center for the Study of the Public Domain at Duke Law School. His latest book is "The Shakespeare Chronicles: A Literary Mystery."
I'm Neal Conan. This is NPR News.
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