No doubt you've seen the BoingBoing article about Coldplay's incredible DRM-EULA requirements. Some thought it must be satire. Others thought it was just a regional issue, because the individual that posted the insert is in India. But it seems to be more widespread than that, judging from complaints I'm reading online from customers in other countries.1 So, I got intrigued, and I did a little digging. If you thought Digital Rights Management was just about protecting someone's Most Holy IP, take a look at what I found.
First, while many of you can read the terms from the photograph on Boing Boing, I don't think the blind or sight-impaired can, so here's what the Coldplay insert tells you the consumer must not do and might not be able to do with the CD:
THIS CD IS A COPY PROTECTED CD
Thank you very much for purchasing this CD and helping the cause of "Anti-Piracy". The recordings in this CD have an anti-copying function. They cannot be copied into a PC. In order for you to enjoy high quality music, we have added this special technology.
Before using, please read the following:
This CD cannot be burnt onto a CD-R or hard disk, nor can it be converted into MP3 for file sharing.
This CD has been manufactured for usage in regular CD players but might not play in the following players:
- Some CD players that have the capability of burning into an MP3 (such as portable players or car stereos)
- Some CD players that possess CD-R/RW functions (such as portable players or car stereos)
- Some car steros with satellite "Guidance" systems
- Some CD players or car stereos with hard disk recording capability
- Some CD-R/RW Recorders used for music
- Some portable CD players
- Some DVD players
- Some CD/LD Convertible Players
- Some Game Players
Although you can use your PC's Windows program to listen to certain tracks, this does not mean that the CD can be played in all PC's.
The first time that this program is used (in Windows automatic starter software) it gets registered in Windows File. Thus, programs already registered do not affect Windows operation.
Windows OS also uses the latest files.
This CD does not support MacIntosh PC software.
Except for manufacturing problems, we do not accept exchange, return or refund.
My first reaction was that this might just qualify as an unconscionable contract. Remember Sony getting sued over that issue? An unconscionable contract is one that no one in their right mind, absent duress, would accept. Here Coldplay's music company sells you something that they know isn't going to work for many of you, and if it doesn't, they disclaim all responsibility. How about a list in advance, so we can at least have some star to guide us? And as for the "no exchanges, returns or refunds" language, I thought, in how many states of the US do they think they can get away with that? Surely you can't sell something you know doesn't work and then refuse to take it back. Can you? In the Brave New DRM World, they think they can.
On MP3.com's Coldplay download page, they admit that DRM is a "hassle" for customers, but say without it the major labels won't let much of their music be available online. So they view it as a tradeoff. The thing is, the DRM doesn't actually stop a determined pirate, as they like to call them. It just annoys normal people sufficiently that they end up going the DRM-free route to escape what any normal person would view as unconscionable terms.
Now let me say here and now that I believe in keeping the law. That is what Groklaw is all about. And I personally won't file-share until someone does something about the current imbalance in copyright law and remembers that fair use is also part of the law. I assert that we *all* should be law-abiding, including the DRM-crazed content owners, who, I believe, have an obligation to keep the part of the law that they don't like, the fair use part, just as the rest of us have a legal obligation to keep the part, the thou shalt not stuff, that we don't much like. So I don't sample music or download it, unless I paid for it first. Which does raise another point, now that I think of it. It used to be you could listen to music on the radio, or go to a record store and listen to a song to see if you wanted to buy it. Nowadays, the radio doesn't play anything I'd personally like to buy, no matter what part of the US I go to. And I don't remember the last time I went to a record store, if they even call them that any more.
So here is my question. How are you supposed to know what you might like to buy? iTunes lets you listen to a brief couple of seconds, and while that's enough to know if you've found something you remembered hearing before, it's not enough to know if you like something new. I played the sample on a Bernadette Peters song once, and it was entirely her chatting with the audience before she started to sing.
Here's another example: I was reading about Mozart the other day. Now, I don't much care for Mozart, as it happens, because his music makes me hyper. I'll go anywhere to escape, like a whale beaching itself to escape military sonar. But when I read recently about his Clarinet Quintet in A, I thought I ought to try again. I have always assumed that I must be wrong about Mozart, that maybe it was just over my head. So I went on a quest to find it to see if I'd like it. I didn't want it enough to go to a store in meat space, but if I could find it online, I'd buy it if I liked it.
So, I went to Google and began to look. First, I searched for
"Clarinet Quintet in A" Mozart
I couldn't find any links that didn't require you to buy before you could listen. So I added the word 'play'. Then I found some now-broken links, where I used to be able to find Benny Goodman playing it -- now that sounded like fun -- but nothing currently.
So I hopped on over to BBC FM Listen, hoping to catch it during Mozart week, or whatever they are calling it. I found a link to Classic FM, which told me some interesting things about Mozart, including this bit:
In some ways, it is his very human fallibility that lends the music its miraculous quality for, as pianist Lili Kraus put it: 'There is no feeling, no depth, no height the human spirit can reach that is not contained in Mozart's music.'
Not everyone agrees, of course, and there are those who share the opinion of Emperor Joseph II, after hearing a rehearsal for The Abduction from the Seraglio, that the music 'contained too many notes'. ('I ask your majesty's pardon,' replied Mozart, 'there are just as many notes as there should be.')
That's exactly how I feel, too many notes, but I gather the Emperor and I are in the minority. When I tried to listen to Classic FM, I got this message: "To listen to Classic FM online you need to have Windows Media Player installed."
Oh, great. That leaves me out totally. Do they think the whole world uses Microsoft software? Or is that someone's goal?
I also learned some interesting things about copyright in Mozart's day. It was a lot like today. The Big Boys claimed special rights, on pain of God knows what, and most artists died paupers, including Mozart:
It was during this time (1769-71) that, as legend has it, Mozart wrote out the entire score of Allegri's Miserere from memory after hearing it sung once in the Sistine Chapel. Copyright of the papal choir's music was jealously guarded and infringement risked excommunication. In fact, Mozart had almost certainly seen the score and returned for a second performance to check what he had written down.
Good golly, Miss Molly. Mozart was a pirate. I thought for some time about Mozart risking excommunication by copying the Pope's choir music, or more accurately, leaping from it into the creative sky.
And yes, he died poor:
Their finances were perilously poised, despite many commissions and concert appearances. No court appointment materialised and, though not exactly on the breadline, he wrote begging letters to friends - many to his fellow Mason, the Viennese banker Michael Puchberg. (These loans were never repaid and Mozart had no scruples in not paying his debts.) Yet, between 1784 and 1786, he composed nine of the greatest piano concertos in the literature and, in his last year, was writing three of these concurrently with The Marriage of Figaro! The year 1787 saw the death of his father and the premiere (in Prague) of his second operatic masterpiece, Don Giovanni. He also secured a position as Kammercompositor in Vienna, succeeding Gluck, who had been paid 2,000 gulden, whereas Mozart had to make do with 800. Though bad luck and lack of money were constants in his life, Mozart was still able to compose with a fluency and organisation that is given to few. ...
It is said that Mozart was buried in a pauper's grave. Not so. The funeral was all Constanze could afford. After the service, held in the open air at St Stephen's Cathedral, with Mozart's body probably putrefying, no-one chose to accompany the coffin to the cemetery of St Marx - a good hour's walk away. The result is that the precise final resting place of one of music's greatest geniuses is unknown. His remains seem to have been moved from their original location when the family failed to pay the mandatory dues.
Some things never change, I see, including folks willing to risk it all to hear music. Anyhow, I finally gave up. I was willing to pay money for Mozart; but I wanted to listen first, and I couldn't. Now, no doubt my readers will find a place where I can listen, legally, and in fact, I hope they do. But the point is, I spent some time on this project, and I couldn't find it. What should that tell the music industry? They keep shutting down and shutting down, until there is nothing left but their DRM nonsense, and no one in their right mind would agree to their terms, or at least I won't, even if it means doing without music. I wonder if they have any idea how many people there are like me out here.
Some are already bypassing the Coldplay DRM, by such astounding feats as holding down the shift key when loading the CD. There's more to it than that, but if I tell you, the RIAA will have to kill me, maybe by throwing me into the RIAA moat with the man-eating crocodiles, if I explain or link to it, so you'll just have to wonder. Or Google. Oops. They'll probably sue Google now.
Others, who bought the Coldplay CD only to find out how little it can do, are now leaving enraged comments. I saw one from a man in Canada, who said that it's driving his family to Napster, which tells you it's an older person writing that, because he doesn't know the new Napster is a hobbled version of the real thing, thanks to the music industry. But it does raise two questions: 1) does it make sense for the music industry to offer customers *less* than they can get from file-sharing? and 2) what *will* play Coldplay's CD?
The answer is: Microsoft and only Microsoft. Thou Shalt Use Microsoft, or there are hassles ahead. And so, like Alice munching on a mushroom in Wonderland, I stopped and pondered the question that hit me with unusual clarity: is this the true purpose of DRM? It's an anticompetitive tool? Microsoft might call it a feature. In fact, they have a name for it: PlaysForSure, and they suggest we look for that logo when buying music, so we can be sure the music we buy will actually play on what we own and use:
Look for the PlaysForSure logo if you're shopping for a music or video device and you want to make sure the digital music and video you purchase will play back on it every time. Match the PlaysForSure logo on a large selection of leading devices and online music stores. If you see the logo you'll know your digital music will play for sure.
How's that for marketing? Can you imagine being the marketing drone tasked with coming up with a way to sell DRM to us? No one in their right mind would want DRM. Ever. Maybe after they make it so unpleasant by chopping up the market into two groups -- Nothing Works Right and Microsoft -- they figure we'll give up and use their stuff exclusively in despair, dutifully searching for a sign that we'll be able to play what we pay for. PlaysForSure. He probably got a bonus for that. As the What Is PlaysForSure? page puts it,
"The PlaysForSure logo makes it easy to find digital media stores and devices that work together." So, that's the plan, Stan. Plant your flag on the moon and claim it's yours and no one else can be there. And with Microsoft in the monopoly position, it probably figures it can harass everyone else's customers into subjection. I wonder what the DRM plans are for their XML?
Actually, DRM guarantees hassles no matter what you use, as I'll show you next, but at least you will be able to play the CD if you use Microsoft XP and Windows Media Player. I don't know why they don't just say so in the Coldplay insert, instead of leaving us all guessing. The insert could just read:
Coldplay: This CD is only for customers who use Microsoft products and only on players that are blessed by Microsoft, and for customers who are willing to accept DRM controlling how they can use the CD. If you use a Mac or GNU/Linux, you are excommunicated. And if you look for an alternative, we reserve the right to tip off the RIAA and then it'll be off with your head. Don't like it? We don't care. Watch us sitting in our offices not caring.
I went to the Coldplay Shop Help page, and DRM leads to all sorts of issues for you. Here's just a small sample of what you may have to do to play your CD, and I've marked a few things that make my hair stand on end:
Q) I have downloaded a track but am having trouble playing it.
Please follow the following steps to resolve your problem:
STEP 1: Firewalls
If you have a personal firewall or are behind a corporate firewall, you may experience problems either downloading the track(s) or acquiring a license to play the track. You can try temporarily disabling your firewall or speaking to your Company's IT support to see if they can resolve this.
STEP 2: Windows Media Player
Make sure you have Windows Media Player Series 10. You can download this for free at http://www.microsoft.com/windows/windowsmedia/
STEP 3: Active X
Make sure Active X is enabled. In Internet Explorer, go to Tools > Internet Options > Security > Custom Level. and enable Active X controls
STEP 4: Windows Media FAQ's
Please try the Windows Media FAQ's here
STEP 5: Customer Service
Please contact us via our customer service system - click here...
Q) I'm having trouble burning a download to CD
A) Open Windows Media Player (you MUST use this to burn to CD - other CD burning software will NOT work)
1. Click Copy to CD or Device
2. In the Items to Copy pane, select the track you want to copy
3. Insert a blank CD-R in your CD writer
4. IMPORTANT: In the Items on Device pane, click one of the following:
5. Click Copy.
- Roxio CD Burning
Before tracks are copied to your CD, they are inspected and, in some cases, converted to a file type. This process takes several minutes. ...
Q) What portable players will these downloads work with?
A) There are over 500 devices that support Windows Media Audio. Click here for a complete list.
I did click to view the complete list, and I don't own any of the players on the list. Not a single one. And as for their suggestion I turn on ActiveX and turn off my firewall at the same time, if I'm having trouble, I think I'll pass. You don't know what trouble is, until you follow that advice on a bad day. As for using XP Home and Windows Media Player, you might want to read the EULAs before you use that. Here's the bit about DRM in the XP Home EULA:
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
2.1 Digital Rights Management. Content providers are using the digital rights management technology contained in this Software ("DRM") to protect the integrity of their content ("Secure Content") so that their intellectual property, including copyright, in such content is not misappropriated. Portions of this Software and third party applications such as media players use DRM to play Secure Content ("DRM Software"). If the DRM Software's security has been compromised, owners of Secure Content ("Secure Content Owners") may request that Microsoft revoke the DRM Software's right to copy, display and/or play Secure Content. Revocation does not alter the DRM Software's ability to play unprotected content. A list of revoked DRM Software is sent to your computer whenever you download a license for Secure Content from the Internet. You therefore agree that Microsoft may, in conjunction with such license, also download revocation lists onto your computer on behalf of Secure Content Owners. Microsoft will not retrieve any personally identifiable information, or any other information, from your computer by downloading such revocation lists. Secure Content Owners may also require you to upgrade some of the DRM components in this Software ("DRM Upgrades") before accessing their content. When you attempt to play such content, Microsoft DRM Software will notify you that a DRM Upgrade is required and then ask for your consent before the DRM Upgrade is downloaded. Third party DRM Software may do the same. If you decline the upgrade, you will not be able to access content that requires the DRM Upgrade; however, you will still be able to access unprotected content and Secure Content that does not require the upgrade....
2.3 Internet-Based Services Components. The Software contains components that enable and facilitate the use of certain Internet-based services. You acknowledge and agree that Microsoft may automatically check the version of the Software and/or its components that you are utilizing and may provide upgrades or fixes to the Software that will be automatically downloaded to your Workstation Computer.
So, folks, you are agreeing to let Microsoft, or content owners such as music companies, scan your hard drive, "fix" any security issues, according to their definition, and download "fixes" without further notice. Microsoft says it doesn't do it, but I see nothing technically built in that would stop them from taking a look at all your private materials on your hard drive. So there's no DRM to protect *your* intellectual property, just theirs. Oh, and if they or the content owners say you must upgrade to play your music or whatever, they mean you must. If you're naughty, and not nice, they can prevent you from listening to the "protected" content.
Now, I'm not a programmer or a security expert. But as a common consumer, I fail to see the difference between this and what Sony was doing, except that Sony failed to tell anyone. But it's still like having a little spy in your computer, telling Microsoft and its designated agents what you are listening to and how you are behaving with the CDs you bought with your hard-earned money. If you really want to throw up, read the Windows Media Player FAQ. Some highlights from this Brave New DRM World:
11.8 When I try to play a file, a Web page is displayed that says I need to download a license and mentions something about license migration. What does this mean?
The file you are trying to play was ripped (copied) from an audio CD. During the ripping process, the file was protected. This limits the number of computers on which the file can be played.
To play the file on your computer, you must download a license (a process known as license migration). A license acts an electronic key that allows you to unlock a protected file and play it. To download a license for the file, on the Web page that is displayed, click Download License.
There are several reasons why you might not have a license for the protected file:
▪ You ripped the CD on one computer and you are trying to play the protected file on another computer. You need to download a new license because the original license is only valid for the computer on which the CD was ripped.
▪ You ripped the CD on the computer that you are currently using, but your licenses have been deleted. This typically occurs when you reformat your hard disk (such as when you perform a clean installation of Windows), but it can occur in other circumstances as well. To avoid this problem in the future, use the License Management feature of Windows Media Player to back up your licenses to a floppy disk (or other storage media) before you reformat your hard disk.
▪ You obtained the file from someone else who ripped the CD....
Enough. You get the idea. It goes on for miles like that. There are numerous ways to fail and not be able to listen to the music you paid for, even if you give up and use Microsoft XP Home with Windows Media Player. You certainly have to work mighty hard to play a simple CD. And they wonder why file sharing is still booming? The choice shouldn't be between unconscionable terms, breaking the law, or giving up music.
You can let Coldplay know how you feel, by the way, because Skype is offering a contest -- whoever leaves the best message will win an opportunity to talk to the band over Skype:
VoIP high-flier Skype is now offering Coldplay fans the opportunity to speak directly with the band. To enter, Skype subscribers must leave a voicemail with Coldplay explaining why they deserve the chance to chat with the group. Predictably, the winning conversation itself will happen over a Skype connection. Appropriately, the promotion coincides with the release of the Coldplay single, "Talk," the third from the multi-platinum album X&Y. "Skype offers entertainers like Coldplay a unique way to reach tens of millions of people around the world with exclusive content," said Skype vice president of global marketing Saul Klein.
Now, I like Coldplay. They have a track record of trying to protect fans from being ripped off. And I'll bet dollars to doughnuts they didn't come up with the DRM follies. No artist would. Well. Maybe Metallica. But it's not in the best interests of the artists, if you think about it, to allow DRM to shrink their potential audience, which is what the Microsoft nonsense does, or to annoy customers so much they decide never to buy music again. They treat their law-abiding customers like we are devious crooks, even though we wouldn't steal from them in the first place. Meanwhile, the real crooks are in no way deterred. In short, the world has gone mad, as the following item from the BBC's list of 100 things we didn't know last year shows:
100. Musical instrument shops must pay an annual royalty to cover shoppers who perform a recognisable riff before they buy, thereby making a "public performance".
Sigh. I hope it's true that there are alternative universes. Anyway, I've added a new topic for Groklaw, DRM/EULA, and this article is the first in that category. Here's why. Now that Sony got caught with its pants down, and got sued in part for not declaring up front what they were doing with their DRM, I think we'll be seeing more open declarations about DRM from other companies now. Let's look for it, and make a collection of how DRM works and we can throw in any incredible EULA terms that we come across as well.
1 Boing Boing has the following update: "A knowledgeable source has identified this as a Macrovision DRM and disclaimer, and noted that the label only bought licenses to sell this CD with that DRM in the Europe, Middle East and Africa region. However, this report originates in India, which suggests that the CDs are either being exported out of the region, or that the label is issuing the discs without a license for their DRM. Bottom line: wherever you are in the world, there's a chance that your ColdPlay CD came with this DRM, and there's no way to find out without buying the disc and taking it home, and once you do, it's too late to take it back to the store."