DRM and the iPod Shuffle Remote March 24, 2009
On March 11th, 2009, Apple Inc. released a new version of the iPod Shuffle. The iPod Shuffle is controlled with a remote on the earbuds. The remote was soon taken apart to find a authentication chip. The immediate FUD was that this chip contained Digital Rights Management (DRM) that would prevent people from making compatible remotes without a license from Apple. Apple has since said that the chip is solely for the “Made for iPod” Program and the chip will not prevent companies from making non-apple licensed compatible remotes.
The fundamental legal question is what effect, if any, does the DRM chip in the new iPod Shuffle Headphones have.
The short answer is none, or little. Anyone seeking to make compatible chips will likely be protected from lawsuit, it may cause a chilling effect.
As always, the long answer is a little more involved. Copyright law is made to protect non-factual and non-functional expressions of ideas. You cannot copyright facts, but you can copyright, to some degree, the way you organize those facts, and the way you describe those facts. When a chip provides functionality (e.g. compatibility with an iPod, a game console, or a printer) that functional portion of the code is not protectable with copyright. So, assuming there is no copy protection or encryption, someone could copy the code on the chip with impunity.
Once the DMCA was introduced, companies like Lexmark thought they could get around this functionality problem by putting copy protection or encryption on the chips. Circumvention of both of these is prohibited under the DMCA. Lexmark put some encrypted code on the chip in their ink cartridges. Any one who wanted to make compatible cartridges would have to break the encryption and violate the DMCA. Someone did this, Lexmark sued, and the Sixth Circuit Court of Appeals held that in this case, it was OK to break the DMCA, because Lexmark was just trying to use the DMCA to monopolize the market on replacement ink. A judge, concurring in the judgement wanted to send a message:
We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case.
Note: The quote only reflects one judge’s thoughts and does not serve as a rule of law anywhere.
Apple has since debunked the rumor that the chip contains DRM, so this is a bit of a non-issue. However, even if the chip were necessary, and even if it did contain DRM, that likely would not have stopped third parties from legally reverse engineering the chip in order to make compatible headphones. However, the risk of expensive litigation to defend their rights may have had chilling effects on the market for third party, non-Apple licensed headphones.
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