Even if antitrust in the U.S. slowly fades into a subfield of legal history, international pressure can lead to fairer business practices. Consider Norway’s recent pressure on Apple to open up its iTunes/iPod music platform to rival players: “Norway’s consumer regulator declared the lack of interoperability illegal, and gave Apple until Oct. 1 to change it or face legal action and possible fines.”
When emissions standards were introduced in the 1970’s, it’s said that Toyota hired a thousand engineers, and Ford hired a thousand lawyers. We can see where each company is now. Apple’s response to the Norwegian directive appears to show that, after Fordishly fighting France tooth and nail on interoperability, they are finally interested in a constructive approach. Consider these extraordinary words on Apple’s website:
[A final] alternative is to abolish DRMs entirely. Imagine a world where every online store sells DRM-free music encoded in open licensable formats. In such a world, any player can play music purchased from any store, and any store can sell music which is playable on all players. This is clearly the best alternative for consumers, and Apple would embrace it in a heartbeat. If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store. Every iPod ever made will play this DRM-free music.
Why would the big four music companies agree to let Apple and others distribute their music without using DRM systems to protect it? The simplest answer is because DRMs haven’t worked, and may never work, to halt music piracy. Though the big four music companies require that all their music sold online be protected with DRMs, these same music companies continue to sell billions of CDs a year which contain completely unprotected music. That’s right! No DRM system was ever developed for the CD, so all the music distributed on CDs can be easily uploaded to the Internet, then (illegally) downloaded and played on any computer or player.
Precisely. Rather than trying to sweep the sand from the shore, and massively annoying everyone in the process, why not follow this plan? True interoperability would likely lead to a boom in the sale of both digital music players and music. For way too long, the industry has focused on minimizing losses, rather than maximizing gains.
Fortunately, the scorched earth litigation strategy against infringers is getting less viable as a few defendants fight back. In Capitol Record v. Debbie Foster, the defendant successfully introduced a “‘prove it was me using the computer’ defense.” The strategy may gain traction: “Although the judge in Elektra v. Santangelo declined to dismiss the labels’ infringement claims against Patti Santangelo, he doubted that ‘an Internet-illiterate parent who does not know Kazaa from a kazoo’ could be found liable for file sharing done in her house without her knowledge or consent.” Foster actually won attorney’s fees against the RIAA–throwing a wrench into the works of an infringement litigation machine.