Photo: CARL DE SOUZA/AFP/Getty Images

Cuffs off: Eric Nicoli, CEO of EMI [right], joins with Apple's Steve Jobs in unlocking digital music.

Digital rights management, the group of technologies that control copying and use of digital media downloads and disks, has infuriated consumers since its inception in the mid-1990s. Consumer advocacy groups rallied against it, arguing that locking digital content prevented not only illegal uses but legal ones as well. But the record and movie industries lobbied hard for enforcement of these locks, and in 1998 won the passage of the Digital Millennium Copyright Act, which made simply breaking one of these locks illegal, even if no copyright violation followed. The industries have taken the position that protection of artists' intellectual property is vital to their creative efforts.

Until last February, the tides continued to move in favor of expanded DRM, but then, with his trademark panache, Apple's cofounder and CEO, Steve Jobs, proposed that we simply dispense with DRM altogether. In an essay published on the Apple Web site, “Thoughts on Music,” Jobs said that Apple would embrace “in a heartbeat” DRM-free music, if only the music companies would allow it. He stated that DRM systems “haven't worked, and may never work, to halt music piracy,” and suggested that those unhappy with DRM stop complaining to Apple and “redirect their energies towards persuading the music companies to sell their music DRM-free.”

The rumor mill took these statements to mean that at least one record company, if not more, had DRM-free downloads in the works. And indeed, that was the case; in April, the London-based EMI Group, which ranks third in sales among music companies worldwide, announced that it would now offer premium downloads free of DRM restrictions. EMI believes, said company CEO Eric Nicoli, that allowing consumers to listen to digital music “on the device or platform of their choice will boost sales” [see photograph, “Cuffs Off”].

Then, in mid-May, Amazon announced it would sell DRM-free music online, including recordings from EMI and some 12 000 independent labels. One analyst predicted that by the end of this year half of the world's whole music catalog would be available without DRM restrictions.

Jobs's announcement was greeted initially with cynicism: was he merely trying to finesse recent European moves to bring antitrust action against Apple's iTunes? Did he assume nothing really would come of his seductive proposal? Was it all just public relations? But, in fact, his proposal and EMI's action amount to great news for consumers, who will be able to use digital music libraries much more freely. The initiatives are also good for consumer electronics companies, which will be able to sell new products to enable consumers to move that DRM-free music around. And there may even be benefits for recording artists, though the net impact of a DRM-free world on the fate of the record companies is less clear.

Historically, music distributed on vinyl, tape, and CD was free of copy protection. In contrast to the film industry, which began attempting to prevent copying as soon as the VCR made home recording possible, the music business has a long history of copying for various uses, some clearly legal—such as making a mix tape for a party—and some less so, like selling bootleg concert tapes.

From that perspective, the introduction of DRM into the music world was an anomaly. No longer could a consumer who bought a new computer move his music collection to it, nor could a child making a slide show for a school project back that show with favorite tunes. Moreover, music collections purchased online could be locked to only one brand of device—forever.

Can we now imagine a new world, really a return to the old spirit of music recording, without DRM? The music industry has for years said it doesn't want to go there, and these days the industry's trade group, the Recording Industry Association of America, simply is not talking; IEEE Spectrum got an official “no comment.”

But perhaps the industry is finally realizing that DRM is pointless, after all. It was meant to be a barrier to piracy but has turned out to have little effect. Just consider the fundamentals: according to Big Champagne, a media measurement firm based in Beverly Hills, Calif., and Atlanta, there's typically only a 3-minute gap from the time the Apple iTunes store makes a song available to the time it is available on an illegal music-sharing network, stripped of its copy protection.

Perhaps it's time for even the industry to contemplate those benefits of a no-DRM world that are so evident to just about everyone else:

• A no-DRM world will be good for innovation. Thus, the Consumer Electronics Association, a worldwide organization of manufacturers, based in Arlington, Va., has declared itself “delighted” by EMI's move. “We would like all the music labels to follow suit,” says CEA spokesman Jason Oxman. As the consumer electronics industry sees it, DRM has hamstrung product development.

Consumers and engineers can envision lots of music-playing products and features that would be useful; introducing them in a DRM world, however, has invited lawsuits. [See “Death by DMCA,” IEEE Spectrum, June 2006.] In recent years, the recording industry has gone after XM Satellite Radio for marketing products that allow consumers to record satellite radio programs for later listening, for example, and after devices that record HD radio broadcasts.

In the consumer electronics industry's view, says Oxman, customers should be able to do anything they want with legally purchased music, as long as it's for their personal use and perhaps for members of their household. They should be able to listen to music in different rooms, on different devices, and take it with them when they travel or have it in their cars. For example, a music collector might have a small digital music player for jogging and a larger one for commuting. Today, if these are made by different manufacturers, they can't share a music library if that music has been purchased online; in a DRM-free world, the consumer would not be locked into one manufacturer's product line or forced to maintain multiple music libraries.

• no-DRM is unequivocally good for the music-listening public. If the industry moves in the direction of lifting DRM and “we end up in a world in which music is sold in an unrestricted format as a default, we have the world we want to live in,” says Jason Schultz, a staff attorney with the Electronic Frontier Foundation (EFF), a consumer advocacy organization.

Besides enabling people to listen to recordings on any kind of device and copy them as they wish, music without DRM also stands to be of higher fidelity [see sidebar, “A Fringe Benefit of No-DRM Music ”].

• Absence of DRM will not necessarily lead to more piracy and may actually discourage it. “DRM is not stopping anybody from massive [music file] sharing,” said EFF's Schultz. “It is only hurting the legitimate customers.” In fact, argues Schultz, DRM drives some would-be paying customers to the music black market, because, to date, it's the only place where you can obtain music downloads that you can use without constraints.

“Eliminating DRM will equalize the playing fields for the legitimate and illegitimate distributors” without preventing the industry from going after those who infringe copyright by sharing or downloading music illegally.

As things stand, it looks like legal and illegal downloads are roughly equivalent in terms of download numbers. Though nobody knows exactly how much music is shared or downloaded illegally and whether or not those who obtain illegal music would otherwise be paying customers, about 20 billion songs were illegally swapped or downloaded in 2005. Such activity is particularly rampant in China, Korea, Spain, and Taiwan, according to the London-based International Federation of the Phonographic Industry (IFPI). Legitimate sales of digital music racked up about US $20 billion last year, with $2 billion of that in online sales, the IFPI estimates.

A world in which at least half the music is obtained free of charge is not a world in which DRM is working very well. Nor is there any real reason to fear that elimination of DRM will lead to the immediate demise of sold music. Just the instant gratification obtainable from online music stores, plus the higher quality and add-on features offered on sold discs, guarantee the continued viability of the business, as the CEA's Oxman sees it.

• Recording artists won't necessarily suffer in a no-DRM world. These are the struggling musicians who supposedly would be playing their guitars for tips in the subway, in the doomsday scenario, if music were distributed DRM-free. For them, however, the move to a DRM-free world is either good news or irrelevant. It may mean fewer sales for the top moneymakers, but the majority of recordings—85 percent according to the RIAA—don't generate enough revenue to cover their costs.

Todd Rundgren, a recording artist since 1966 who has performed on some 30 albums and produced another 50 or so, is thrilled by EMI's move. “The reality of the music industry,” he said in a phone interview from Raleigh, N.C., “is that artists don't see money from their recordings; we capitalize on music we have recorded by going out and performing live. It is actually more worthwhile to give your music away—and make it up in terms of ticket sales.”

Rundgren, who will be touring this summer as part of the New Cars, says that across the board, from niche musicians to megagroups, artists can make ten times as much money from performances as from record sales. “If it takes me a year to sell a million records and I made $1 million in royalties from that, I'd make that much in a week or so if I toured,” he says.

Though a big seller like Metallica might complain that they “can't afford a second swimming pool because their music has been bootlegged, they are ignoring the fact that the bootlegging means they are selling more concert tickets than ever,” Rundgren says. In his view, DRM can be an impediment to getting listened to, so its abolition is a win for artists.

Suzzy Roche, a member of the Roches band, has recorded 15 albums since 1979, and speaking before a concert from a hotel in Burlington, Vt., she said, “I've never made a penny off of any of them.” At first, she says, in the early days of Napster and unfettered file sharing, the “whole idea of somebody being able to just take your music without paying for it” disturbed her. But she's since gotten used to the Internet age. “People are constantly filming our concerts and putting them on YouTube. People can take whatever they want; philosophically, less and less belongs to anyone.”

Throughout her career Roche has supported herself by live performances, and she says that if more people are hearing her music because they are sharing it, that can only be a good thing.

Photo: Matthew Peyton/Getty Images/Mohegan Sun

Let It All Hang Out: The rock group Barenaked Ladies favors unlocking digital music.

Rundgren and Roche are not alone. In a 2004 survey by the Pew Internet & American Life Project, 72 percent of musicians found file-sharing of music to be positive for them. In 2006 nearly 200 Canadian recording artists, including top sellers Barenaked Ladies and Avril Lavigne, publicly stated their opposition to DRM.

Whether DRM-free music will turn out to be good for the record companies as well as the artists is anybody's guess. EMI obviously thinks so, but EMI and the RIAA both declined to comment. Rundgren believes traditional record companies are on a path to extinction. To survive, he says, they'll have to become more entrepreneurial, promote their artists better, and recoup their investments in artists by sharing in performance income or other ventures, not through selling recorded music.