Unintended consequences are a bitch. Every once in a while, I find myself feeling sorry for the RIAA and their industry partners. Not only did they fail to anticipate the scope of online file-sharing, and refuse to look into it early for business opportunities, and then come down too hard on their own customers. But they went for, and continue to go for, DRM as a solution to their bleeding business model. (I don’t feel this way all that often.)

So, some bits of news from the DRM battlefield that I’ve been sitting on (cleverly digesting? or failing to get around to?), all of which point to not only the miserable failure of DRM, but the ways it has locked the music labels and retailers into a whole set of unexpected, additional obligations and liabilities.

* First, just to finally prove the point, The Guardian reported last month that removing DRM from iTunes downloads has had no discernable effect on music piracy. I’ve only got this secondhand (hey Guardian, where’s the link to the report that states this?) but I presume it means that the DRM-free tracks from EMI were not showing up any more quickly or in any greater numbers on p2p networks than other tracks from other labels. (Perhaps the EMI tracks, which are DRM-free only in the sense that they have no use restrictions, but are still in a closed AAC format that can carry metadata, had markers in it that could be tracked as music appeared on file-sharing networks — I don’t know.) There are a number of explanations for this, the primary being that all these tracks are also released on CD, which also has no copy-protection; also that many uploads come from inside the industry, before consumer-grade technical protections have been applied; also, as is pointed out here by a representative of Big Champagne, there may not be that much overlap between the population of users who buy from iTunes and the population who upload to p2p networks anyway. Still, it doesn’t speak well for the value of DRM. I have argued elsewhere that combating piracy is not the only or even the primary reason why the music labels like DRM; however, it is one aim, and the most public one, and the more it proves illusory, the worse off the music labels are. (Of course, this may also undercut the claim that DRM and other restrictions are actually driving people to p2p networks. If they were, the EMI tracks should be showing up less than the others, one might hypothesize; not having the data, I can’t speak to this.)

* Second, researchers at the University of Washington studied how music industry lawyers were tracking downloading via BitTorrent and sending out their DMCA “takedown” notices, and were able to spoof them into sending letters to users whose devices were not sharing copyright music, weren’t even connected to a p2p network — weren’t even computers. The report, called “Challenges and Directions for Monitoring P2P File Sharing Networks: or, Why My Printer Received a DMCA Takedown Notice” raises questions about the legitimacy of this legal procedure, if it can so easily be exploited to implicate innocent users. The key, it seems, is that the RIAA is monitoring whether a user searches for a file, and not also checking if they followed up by downloading it. This is similar to a point that Steve Worona of Educause made at a recent talk, where he told of the RIAA admitting that universities who use the Audible Magic blocking software on their campus networks can still get DMCA notices, because students could still search for files, even though the block prevents them from downloading them. (And, it should be noted, merely searching for unauthorized copies of copyrighted music is not illegal.)

* Third, Microsoft announced, but later backpedaled when users went bonkers, that they were going to shut down their license servers. The quick and dirty is, if you buy music from MSN for your Zune (or from Apple for your iPod), that music is authorized to play on your particular computer only. Try to move it to another computer, or even reinstall your operating system after a crash, and you have to prove to MSN or Apple that its still you, by entering your password and reasserting your license to those tracks on a new device. (This is how Apple limits how many devices you can move your iTunes tunes to.) So Microsoft didn’t want to deal with this process anymore, and decided that as of August, users would simply be stuck with the device they’re using. They could never move their music again, because that authorization call to Microsoft would go unanswered. People flipped, and so Microsoft flipped. But it’s a little reminder of the business music sellers have gotten themselves into — overseeing authorization to users, to continue to use the music they’ve already purchased… forever.

* Finally, the cruel and ironic reality. Throughout the copyright wars, the persistent fear of the music industry was that their product, once something that reasonably carried a price tag, would evnetually seem free to the next generation of users, like water. They assumed that piracy would cause this change. Perhaps it has. But it is becoming increasingly clear that this may be their only viable business model in the future. This report from The Economist, after detailing the continuing decline of the music industry, notes the deal struck between Universal and Nokia, to create the “Comes With Music” plan. You buy the top-tier cell phone, it gives you a year of access to unlimited Universal downloads, which you even keep if you switch phones or cell provider; Universal takes a cut of the cost of the phone ($60, it is told). Or, yeesh, a “piracy tax” in your ISP bill, as apparently the RIAA has been begging Congress for recently. The Guardian article, noting the Nokia deal, predicts that Apple will look for a similar model to go with the iPod, and imagines a three-tiered future: some high-end music consumers pay a little for DRM-free downloads of superior sound quality; the bulk of us get our music “free” in the form of a flat fee bundled into our technology purchases, and the bottom tier will be free music with embedded ads, a la SpiralFrog.

By embracing what looked like a technological fix, and found themselves unwittingly beaten by a technology company who could play the game better, will the music industry find itself entirely beholden to, or swallowed up by, the technology industry? providers of mere data? When every digital technology “comes with music,” will music become the informational equivalent of cole slaw?

Mmm, cole slaw.

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