Recently (ok, so a few months ago) France made some headlines by proposing a bill that requires that digital music downloads be interoperable with all digital music players.

France to Apple: Open up iTunes or Shut Down

This bill is clearly aimed at Apple and iTunes, although of course it would apply to other content providers as well. If passed, Apple would probably have to remove DRM on files downloaded by French customers or pull out of France.

This got me thinking about DRM and how it relates to the customer. For the most part, iTunes is the best out there, but it has a fatal flaw (which I describe later). In principle, I believe DRM is legal and ethically justifiable. In practice, I believe that today's DRM implementations and associated copying restrictions infringe on some of our basic rights as consumers.

Imagine going to the store to buy the latest copy of Windows. When you hand over your credit card to the CompUSA clerk, what are you buying? Ostensibly, you are buying a box, a CD/DVD, a manual, and a product key. But anyone with a basic understanding of software licenses knows that you are not really buying these physical objects, but rather the right to use Windows software on one computer.

With the exception of possibly the manual, these objects have trivial manufacturing cost (yes I know that manufacturing cost does not determine price, but bear with me.) These cheaply manufactured objects are merely vehicles to help you use the license that you just purchased. Even if you break the CD or lose the product key, surely you have not relinquished your right to use the software. Similarly, if you computer crashes and your hard drive dies, you have not lost your license to use the software. So why is it that after a reinstall after a hard drive crash, that you should be required to jump through activation hoops? Recently, after this exact thing happened to me, it took a phone call of about 20 minutes including on hold time to convince the Indian technician on the other end that I in fact had a legitimate license of Windows and should be allowed to activate it again.

Even though this is unfortunate, it far from the worst example. iTunes will not let you redownload songs after a hard drive crash. Why? My guess it that it is a requirement of the music labels from whom they license the right to sell the music, but it could just be a bandwidth saving decision. I have heard that if you call Apple and ask nicely, they might allow to redownload songs but this is not the norm.

The worst example I can think of is direct2drive video game downloads. I once made the mistake of buying a game from Direct2Drive. After the same crash that cost me my Windows installation, the game was gone. I had not backed up the downloaded installation program, but even if I had I would not have been able to reinstall because of the activation requirement. Even if I had been able to convince direct2drive to permit me another activation, this should not be a requirement. If I paid for the license and the not the installed bits, a reinstall should be a routine procedure. If in fact I paid for the license AND the installed bits, why do our laws allow the sale of something as transient as bits on (fallible) magnetic storage? At least WMP prompts users to back up their licenses, but not even failure to backup licenses should constitute relinquishment of those licenses.

I think that content providers should be able to protect their content. I also believe in fair use rights of consumers who buy content. When the consumer gives money to the creator, they enter into a special arrangement and the laws of most states say that they have special rights. I think we have a need for laws restricting the scope of Copy Protection*, Media DRM, and Software Activation to protect consumers rights in light of fair use precedent.

I am not indicting the principle behind DRM, I am merely concerned with the design decisions that have been made in current DRM implementations. As a fix, I propose two requirements in the case where media or software is meant to be persistent (non-rental and non-trial situations):

1. The files and related licenses must be associated with a user (similar to the iTunes model), not the OS or even the hardware, and
2. The files and licenses must be available for redownload (perhaps with a small "delivery fee" associated with the bandwidth and processing costs of the content provider).

Simply put, content providers cannot have their cake and eat it too: either remove DRM restrictions and allow us to back up and copy at will, or give us the means to easily replace our content and licenses in the event of loss.

* By which I mean to say the prevention or restriction of the copying of bits of copyrighted material primarily meaning disallowing redownloads of legitimate purchases but also regulation of P2P and media protections such as DVD CSS