Save iTunes: how the W3C's argument for web-wide DRM would have killed iTunes

The World Wide Web Consortium's plan to standardize web-wide digital rights management is based on the idea that if an entertainment company doesn't like a new technology, it should have the right to prevent that technology from coming into being.

The movie studios, Netflix, and big tech companies are working together at the W3C — long a bastion of openness on the web — to standardize "Encrypted Media Extensions," a technology designed to give the entertainment companies the right to decide which features video players are allowed to have, and the power to prevent legal features from being added to new technologies if they don't like them.

But the history of technology is the history of legal technologies — legal, but infuriating to the entertainment industry — become ascendant precisely because big content didn't get to tell tech what it could and couldn't do: from the TV remote to the VCR to iTunes, the entertainment industry has fought every major innovation in technology.

Most recently, iTunes was able to become a powerhouse in music by allowing Apple customers to legally format-shift their digital music. The fact that the RIAA hated this, said it was (or should be) illegal, and tried to stop them didn't mean that Apple couldn't go on. They did. We got the digital music revolution.

If music had been locked up under something like EME back in 2001, it would have been very different. EME is designed to invoke the Digital Millennium Copyright Act (a US law with many global equivalents, thanks to the lobbying of the US Trade Rep). Once a format is sheltered by the DMCA, doing anything with it without the rightsholder's permission puts you in legal jeopardy.

I worked with the Electronic Frontier Foundation to propose a W3C policy that would have made its members promise not to use the DMCA to take down legal technologies, and the W3C's director completely rejected that proposal. So now EME is going forward, without even the barest legal safeguards.

The record companies thought that anything that let listeners do more with their music had to be illegal. After all, they had big plans for the future of music and those plans hinged on being able to control how you and I used our music. They'd made big money selling cassettes to LP owners, and CDs to cassette owners, and they viewed selling digital versions of those same songs to us as their inalienable right. If we could rip our own CDs, how would they sell us that music again?

Luckily for us and for Apple, a company's preferences don't have the force of law. The record companies could gripe, but they couldn't stop iTunes.

Not until now, anyway.

Apple is a member of the World Wide Web Consortium (W3C), a body currently working to make a standard for restricting Web users' options while they view copyrighted works. This standard, Encrypted Media Extensions (EME), allows media companies to restrict the use of copyrighted works without regard to the limits of copyright law. Copyright lets you do all kinds of things with the works you lawfully access: record them to experience later, move them to a different device, pause them so you can get a snack or change a diaper.

Save iTunes!