James Boyle: The Apple of forbidden
knowledge
By
James Boyle © 2004
Published: Financial Times Online
August 12 2004 13:27 | Last updated: September 10 2004 13:27 (The Financial Times is enlightened enough
to agree that I can keep copyright in my articles - and thus share them under
the terms I choose. That is one of the
key reasons I write for them. Please
look at www.ft.com/techforum for some
of the other interesting work they publish)
You could tell it was a bizarre feud by
the statement Apple issued, one strangely at odds with the Palo Alto Zen-chic
the company normally projects. "We are stunned that RealNetworks has adopted
the tactics and ethics of a hacker to break into the iPod, and we are
investigating the implications of their actions under the DMCA [Digital
Millennium Copyright Act] and other laws." What vile thing had RealNetworks
done? They had developed a program called Harmony that would allow iPod owners
to buy songs from Real's Music Store and play them on their own iPods. That's
it. So why all the outrage? It turns out that this little controversy has a lot
to teach us about the New Economy.
Apple iPods can be used to store all kinds of material, from word
processing documents to MP3 files. If you want to use these popular digital
music players to download copy-protected music, though, you have only one
source: Apple's iTunes service, which offers songs at 99 cents a pop in the US,
79p in the UK. If you try to download copy-protected material from any other
service, the iPod will refuse to play it. That has been the case until now.
Real's actions would mean that consumers had two sources of copy-protected
music for their iPods. Presumably all the virtues of competition, including
improved variety and lowered prices, would follow. iPod owners would be happy.
But Apple was not.
The first lesson of the story is how strangely people use the
metaphors of tangible property in new economy disputes. How exactly had Real
"broken into" the iPod? It hadn't broken into my iPod, which is after all my
iPod. If I want to use Real's service to download music to my own device,
where's the breaking and entering? What Real had done was make the iPod
"interoperable" with another format. If Boyle's word processing program can
convert Microsoft Word files into Boyle's format, allowing Word users to switch
programs, am I "breaking into Word"? Well, Microsoft might think so, but most
of us do not. So leaving aside the legal claim for a moment, where is the
ethical foul? Apple was saying (and apparently believed) that Real had broken
into something different from my iPod or your iPod. They had broken into the idea
of an iPod. (I imagine a small, Platonic white rectangle, presumably imbued
with the spirit of Steve Jobs.)
Their true sin was trying to understand the iPod so that they
could make it do things that Apple did not want it to do. As an ethical matter,
is figuring out how things work, in order to compete with the original
manufacturers, breaking and entering? In the strange netherland between
hardware and software, device and product, the answer is often a morally
heartfelt "yes!" I would stress "morally heartfelt". It is true manufacturers
want to make lots of money, and would rather not have competitors. Bob Young of
Red Hat claims "every business person wakes up in the morning and says 'how can
I become a monopolist?'" Beyond that, though, innovators actually come to
believe that they have the moral right to control the uses of their goods after
they are sold. This isn't your iPod, it's Apple's iPod. Yet even if they
believe this, we don't have to agree.
In the material world, when a razor manufacturer claims that a
generic razor blade maker is "stealing my customers" by making compatible
blades, we simply laugh. The "hacking" there consists of looking at the razor
and manufacturing a blade that will fit. But when information about
compatibility is inscribed in binary code and silicon circuits, rather than the
moulded plastic of a razor cartridge, our moral intuitions are a little less
confident. And all kinds of bad policy can flourish in that area of moral
uncertainty.
This leads us to the law. Surely Apple's legal claim is as
baseless as their moral one? Probably, but it is a closer call than you would
think. And that is where the iPod war provides its second new economy lesson.
In a competitive market, Apple would choose whether to make the iPod an open
platform, able to work with everyone's music service, or to try to keep it
closed, hoping to extract more money by using consumers' loyalty to the
hardware to drive them to the tied music service. If they attempted to keep it
closed, competitors would try to make compatible products, acting like the
manufacturers of generic razor blades, or printer cartridges. The war would be
fought out on the hardware (and software) level, with the manufacturer of the
platform constantly seeking to make the competing products incompatible, to
badmouth their quality, and to use "fear, uncertainty and doubt" to stop
consumers switching. (Apple's actual words were: "When we update our iPod
software from time to time, it is highly likely that Real's Harmony technology
will cease to work with current and future iPods.") Meanwhile the competitors
would race to untangle the knots as fast as the platform manufacturer could tie
them. If the consumers got irritated enough they could give up their sunk
costs, and switch to another product altogether. All of this seems fine, even
if it represents the kind of socially wasteful arms race that led critics of
capitalism to prophesy its inevitable doom. Competition is good, and
competition will often require interoperability.
But thanks to some rules passed to protect digital "content" (such
as copyrighted songs and software) the constant arms race over interoperability
now has a new legal dimension. The Digital Millennium Copyright Act and
equivalent laws worldwide were supposed to allow copyright owners to protect
their content with state-backed digital fences that it would be illegal to cut.
They were not supposed to make interoperability illegal, still less to give
device manufacturers a monopoly over tied products, but that is exactly how
they are being used. Manufacturers of printers are claiming that generic ink
cartridges violate the DMCA. Makers of garage door openers portray generic
replacements as "pirates" of their copyrighted codes. And now we have Apple
claiming that RealNetworks is engaged in a little digital breaking and
entering. In each case the argument equates the actions required to make one
machine or program work with another to the actions required to break into an
encrypted music file. For a lot of reasons this is a very bad legal argument.
Will it be recognised as such?
There the answer is less certain. In the United States, there are
exceptions for reverse engineering, but the European copyright directive
bobbled the issue badly, and some of the efforts at national implementation
have the same problem. In the legitimate attempt to protect an existing legal monopoly
over copyrighted content, these "technological measure" provisions run the risk
of giving device and software manufacturers an entirely new legal monopoly over
tied products, undercutting the EU's software directive and its competition
policy in the process. Pity the poor razor manufacturers. Stuck in the analogue
world, they will still have to compete to make a living, unable to make claims
that the generic sellers are "breaking into our razors".
Though this is an entirely unnecessary, legally created mess there
is one nicely ironic note. About 20 years ago, a stylish technology company
with a clearly superior hardware and software system had to choose whether to
make its hardware platform open, and sell more of its superior software, or
whether to make it closed, and tie the two tightly together. It chose closed.
Its name: Apple. Its market share, now? About 5 per cent. Of course, back then
competition was legal. One wishes that the new generation of copyright laws
made it clearer that it still is.
The writer is William Neal Reynolds Professor of Law at Duke Law
School, a board member of Creative Commons and the co-founder of the Center for
the Study of the Public Domain