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MSN Music DRM Servers Going Dark In September
PDQ Back writes to tell us about an email Microsoft sent to former customers of MSN Music today. The company said it would be turning off the DRM servers used to authorize playback of music purchased from the now-defunct MSN Music store. "'As of August 31, 2008, we will no longer be able to support the retrieval of license keys for the songs you purchased from MSN Music or the authorization of additional computers,' reads the e-mail. This doesn't just apply to the five different computers that PlaysForSure allows users to authorize, it also applies to operating systems on the same machine (users need to reauthorize a machine after they upgrade from Windows XP to Windows Vista, for example). Once September rolls around, users are committed to whatever five machines they may have authorized — along with whatever OS they are running."
Which is why they say "Own it on CD today" or in the case of movies "own it on DVD today" ?
The Christian Right is Neither (Christian nor right). See: Matthew 23, Matthew 25, Ezekiel 16:48-50
The reality is that copies of music are sold, not licensed. Title 17 does not provide for any licensing of a work to someone for use in the home. Search for the word "license" in Title 17 if you don't believe me. Every instance refers to licensing the right to copy it. The right to play a legally produced copy of music that was legally obtained is pretty soundly covered under "Fair Use". Therefore, a third party taking away the ability to play music that you own without providing a replacement effectively constitutes theft of property, and should be punished accordingly with jail time for the top people at the record companies and Microsoft plus civil liability. No contract can allow a company to violate the law, period. Such a clause would be considered an illegal agreement, and thus would not be upheld in court.
That said, if we naively believe the music industry's misinformation and consider it a license, Chapter 2, section 203 lays out what they have to do so revoke that license. Let's just say it would be cheaper for them to mail a copy of every song out on CD. Among other things, it requires them to provide an advance notice in writing to every single person who received the license, which must be signed by the copyright holders, must provide the effective date of termination, and can never occur under any circumstances prior to the 35th anniversary of the grant. Even such a revocation would not remove your rights to private listening of the material, however, as the copyright act explicitly disclaims any interest in covering such use of the material in Chapter 1, section 110:
That said, if this is a nonexclusive copyright license, however, and even if you believe that somehow the EULA manages to trump Title 17, unless there is a termination clause, they cannot revoke that license without cause, and even if there is, a court will almost certainly hold such a clause to be unconscionable, particularly in light of the implied promise that the music "plays for sure", the fundamental inequality of the two parties, and the fact that for most of the people involved, the only way to obtain the music on a per-track basis in a way that was compatible with their devices was through one of a handful of services all operating under license from Microsoft, all with the same contract terms.
In short, the case would be about as open and shut as a copyright-related lawsuit can get, and Microsoft and the recording industry would be on the losing end of it.... While normally I would say that the only people who win such a case are the lawyers, even a win for the lawyers in this case would be a great win for the public as a whole, as it would establish precedent for the legal responsibility incumbent upon music publishers who choose to use restrictive DRM. and any such precedent in that area would be a positive change over the current state of the industry.
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