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Judge says labels dropping DRM from downloads in late 2000s is irrelevant to RCN copyright case
By Chris Cooke | Published on Friday 11 March 2022
A judge in the US has knocked back an attempt by an internet service provider to put the spotlight on the music industry’s decision to abandon digital rights management technology in the midst of the iTunes boom in the late 2000s as part of an ongoing copyright infringement legal battle.
ISP RCN was basically arguing that by dropping DRM on officially sold downloads the music industry made it easier for people to illegally share music online, which, it reckoned, should be considered as it disputes the copyright infringement claims of the labels. Which is bullshit of course, but probably worth a try.
RCN is one of the internet firms being sued by the music industry over allegations it failed to do enough to deal with repeat copyright infringers among its customer base. As a result, the labels argue, RCN should not enjoy safe harbour protection under US copyright law, meaning it can be held liable for any infringement on its networks. It’s one of the various lawsuits filed following the successful test cases pursued by BMG and then the majors against Cox Communications.
Like all the net firms on the receiving end of lawsuits of this kind, RCN has been trying to pick holes aplenty in the legal arguments of the music companies. That mainly involves criticising the processes employed by the anti-piracy companies the music industry uses – in particular Rightscorp and MarkMonitor – and arguing that the evidence of copyright infringement those agencies have gathered is unreliable.
However, as the discovery process in the RCN case continues to go through the motions, the ISP also brought up the decision of the majors to drop DRM from music sold via iTunes and other download platforms in the late 2000s.
With no DRM attached to the downloads sold by licensed download stores, the argument went, it was easier for people to illegally share digital music files during the period in the 2010s that the RCN lawsuit focuses on. With that in mind, RCN wanted to know more about the decision making at the labels in the late 2000s, to see if that policy change by the music industry could help in its bid to defeat this litigation.
For much of the 2000s, the major labels in particular insisted that any music sold by download stores must have DRM technology attached which in theory restricted how many devices a file could be played on. Some labels even dabbled with putting DRM on CDs to make it harder to rip and share tracks from discs.
This DRM strategy achieved nothing, except holding back the legitimate digital music market and therefore aiding the boom in piracy. It basically meant that no legitimate download store could sell major label music in the popular MP3 format – and only the iTunes Store could sell major label released tracks that could be played on the then market leading digital music device, the good old iPod.
Meanwhile, it was generally easy to circumvent the DRM, and MP3s of pretty much every track you could ever want were circulating on the file-sharing networks. And, of course, the sharing of MP3s via those networks pre-dated the rise of the DRMed licensed download stores.
The majors finally started to change their policies around DRM in 2008, allowing iTunes to start selling DRM-free downloads (albeit still in the AAC format), while other download stores such as Amazon and eMusic could start selling MP3s from the majors as well as the indies (who, in the main, had never had the DRM obsession).
It was a wise move, making legitimate download stores much more user-friendly and therefore more compelling. And the iTunes Store thrived in the following years.
Although, of course, around about that time subscription streaming also started to take off, so that ultimately the download market peaked and everyone started accessing their music via Spotify et al instead. Especially once Spotify-type services started offering offline listening to users – a functionality enabled by, oh, look, DRM-protected downloads. It’s a funny old world.
Anyway, RCN wanting to bring up this whole interesting period in the history of digital music seemed like an act of desperation as it tries to fight off the music industry’s copyright infringement claim.
After all, if anything, the majors dropping DRM made legitimate download stores more compelling, meaning they could better compete with illegal download networks. Plus, at the same time, the labels were negotiating their initial deals with Spotify et al, providing another compelling way of accessing digital music that made piracy less attractive.
With that in mind, a judge overseeing the case ruled this week that RCN’s efforts to find out more about how the DRM policy change at the majors came about was entirely irrelevant to this case. That conclusion came alongside a whole stack of other rulings regarding the discovery process in the labels v RCN litigation.
Magistrate judge Tonianne J Bongiovanni wrote: “RCN’s request that plaintiffs be compelled to ‘identify all persons who participated in plaintiffs’ decision in or around 2009 to remove digital rights management from sound recordings sold through the iTunes Store’ … is denied”.
“The court finds that the information sought, which concerns a decision plaintiffs made two years prior to the first instance of copyright infringement at issue in this case, is irrelevant”, she added. “Despite RCN’s arguments to the contrary, the court finds that the decision made by plaintiffs in 2009 neither bears on plaintiffs’ request for damages nor their alleged duty to mitigate same”.
