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On the Zune’s 3×3 limit and device specific limitations

Recently, there has been a lot of talk about the Zune and its wireless sharing functionality, which is — surprise, surprise — defective by design. If you share a song with another Zune owner, the recipient can only listen to the song in question for three times, and he/she has to do this within three days — after that, the file is rendered unusable. A couple of days ago, it was widely reported this was done by wrapping the file in DRM, which made many raise the question whether this would “violate Creative Commons licenses” or not. Go to James Grimmelmann’s Laboratorium for a great analysis of the issue:

It’s not clear to me that this design decision actually causes legal trouble for anyone. First, Microsoft is not, presumably, loading up these devices with CC-licensed media and streaming the files around. Thus, Microsoft hasn’t even passed the basic threshold for violating a license: having been a licensee in the first place. If anyone is violating the licenses here, it’s the users loading up CC files on Zunes and them sending them to friends along with some tasty DRM.

Trouble is, I’m not sure that a CC licensor has a case against users who do just that. The process of placing a file on a Zune is not “ditribut[ing], publicly display[ing], publicly perform[ing], or publicly digitally distribut[ing] the Work,” so it is explicitly allowed by the license. (It’s also a fair use.) That leaves the act of sending it to a Zune-playing friend. In almost all cases, that’s a private, non-commercial copy that cannot substitute for any market for the original. In other words, we are in one of the heartlands of traditional fair use. […]

A couple of days later a Zune developer gave some further clarifications:

We don’t actually “wrap all songs up in DRM:” Zune to Zune Sharing doesn’t change the DRM on a song, and it doesn’t impose DRM restrictions on any files that are unprotected. If you have a song – say that you got “free and clear” – Zune to Zune Sharing won’t apply any DRM to that song. The 3-day/3-play limitation is built into the device, and it only applies on the Zune device […]

So, instead of a DRM system, we have to do with a device specific limitation here. That doesn’t take away the fact that this measure makes the Zune defective by design though. Cory Doctorow comments as follows:

Rightsholders’ wishes are important to MSFT as an excuse for monotonically ratcheting up the restrictions, but are irrelevant when they enable restrictions to be relaxed.

This case is a good illustration of the thin line between DRM and non-encryption based restrictions inside devices. It’s worth noting that there is a legal difference between both techniques: in case somebody writes software to get around the 3×3 limit, the anti-circumvention provision won’t come into play (as there is no DRM being circumvented). Instead, MS will probably release a firmware upgrade for the Zune, thereby triggering subsequent rounds of patches and firmware upgrades for the months and years to come.

To conclude, I’d like to point out that both DRM “wraps” and device specific limitations à la Zune’s 3×3 limit are a fact of life on the Japanese market — especially the mobile market. Two examples:

  • On some Japanese mobile phones, only SD-audio is supported. This means you can only transfer MP3 files to your mobile phone through the SD-Jukebox software, which wraps the files in DRM before copying them to your mobile. Copying them back from your mobile to a computer is only possible if it is the computer they originated from. Needless to say, DRM is wrapped around music files regardless of their license. But as Grimmelmann has pointed out (see above), this isn’t necessarily a problem (although it’s definitely annoying).
  • Another example: if I mail a bitmap or Flash file to my Toshiba mobile phone, the device automatically marks the file as copy-protected. No DRM involved here, just a device specific flagging system (crippling the device for no good reason).

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