Lessig

You seem to have bought into typical MS double speak. The Zune Insider blog says that even though the 'file is unchanged' on sharing for non DRM'ed content, the 3 days/3 times limit on shared music is wired into the device. So if I transfer a CC licensed music from my Zune to yours, you will be able to play it only 3 times, which is a restriction over and above the requirements of the CC license.

If that is not DRM, then what is? Why is DRM being interpreted as 'encryption on a media file'. DRM is anything that restricts, via technology, rights I have via the copyright law and the creator's license.

Zune is essentially assuming that the un-encrypted music I hold is ripped from CD's. That is an unfortunate assumption in the CC world.

Enraged Music Lover is right. The definition of "DRM" that Cesar Menendez is using doesn't include the Zune's deliberately broken design decision not to let Zune-to-Zune files ever be played more than three times or for more than three days. If it walks like DRM and has the same restrictive effects as DRM . . .

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Here's the relevant passage from Menendez's Zune Insider Blog:

Zune to Zune Sharing doesn’t change the DRM on a song, and it doesn’t impose DRM restrictions on any files that are unprotected. If you have a song - say that you got “free and clear” - Zune to Zune Sharing won’t apply any DRM to that song. The 3-day/3-play limitation is built into the device, and it only applies on the Zune device: when you receive a song in your Inbox, the file remains unchanged. After 3 plays or 3 days, you can no longer play the song; however, you can still see a listing of the songs with the associated metadata.

... and here's the relevant restriction from the Creative Commons Attribution Share-Alike license, version 2.5:

You may distribute, publicly display, publicly perform, or publicly digitally perform the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Work that alter or restrict the terms of this License or the recipients' exercise of the rights granted hereunder. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement.

I'm not a lawyer and I have no idea what a court would decide, but it sure looks to me as if this language would not permit the licensee to copy the Work onto a device that imposes a three-day/three-play limitation, even if it's a perfect bytewise copy.

There was a lot of misplaced kerfuffle about whether Zune wrapped CC-licensed tunes with software-based DRM. Although this misinformation was distributed by Microsoft themselves, that and this post both seem to miss the point.

I certainly agree with other commenters that whether the restriction is caused by firmware in the device or by actively wrapping the file to render it useless doesn't matter. It will not play after 3 days either way, on any Zune player. We are slicing the semantics pretty thin to deny that this is a device-imposed DRM restriction that was not present in the original file.

Regardless, Zune also won't play tunes that were previously wrapped with Microsoft's own ironically-named PlaysForSure DRM technology. That is dishonest in and of itself, and disrespectful both to the partners that they licensed this technology to, and to the customers who bought PlaysForSure-wrapped music. On the face of it, this alone demonstrates the evil nature of DRM and the DMCA and especially Microsoft's arrogant implementation of it.

The ultimate irony may be that by creating a device which is neither compatible with previous Microsoft DRMed music, nor with the de facto industry standard iTunes technology, Microsoft has invested hundreds of millions of dollars in an unsellable product. No amount of deep-pocketed spending can change the fact that users have already invested many hundreds of dollars in purchasing tunes that can't be played on this device. There is no compelling advantage to this machine that would cause me to dump my collection and repurchase it for Zune, nor to buck the massive market acceptance of iTunes.

While that may not be Apple's fault, that too demonstrates all too powerfully the damage that DRM is already doing to free markets and technological progress, not to mention consumer rights.

My own take on Zune and DRM is discussed in more detail here:

DRM Update: Microsoft Doesn't Get It

and here:

Copyright, DRM, and the Devil in the Details

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