In a move that would mark the end of a digital music era, Sony BMG Music Entertainment is finalizing plans to sell songs without the copyright protection software that has long restricted the use of music downloaded from the Internet, BusinessWeek.com has learned. Sony BMG, a joint venture of Sony and Bertelsmann, will make at least part of its collection available without so-called digital rights management, or DRM, software some time in the first quarter, according to people familiar with the matter. Sony BMG would become the last of the top four music labels to drop DRM, following Warner Music Group, which in late December said it would sell DRM-free songs through Amazon.com’s digital music store. EMI and Vivendi‘s Universal Music Group announced their plans for DRM-free downloads earlier in 2007.
Getting Hip to the Internet
The impetus to lift copyright protection represents a sea change for the recording industry, which for the better part of a decade has used DRM to guard against what it considers illegal distribution and duplication of songs purchased online. In abandoning DRM on Ã la carte song purchases, the labels could create a raft of new, less restrictive ways of selling music over the Internet, such as through social networks like Facebook and News Corp.’s MySpace. Partnerships with retailers such as Amazon could also help the music industry take a swipe at Apple, which has come to dominate the legal download market through a one-size-fits-all pricing scheme record labels find restrictive.
Details of Sony BMG’s plans are expected to emerge in the coming weeks. Justin Timberlake, the popular recording artist signed to the Sony-owned Jive label, is participating in a Super Bowl promotion with Pepsi that will kick off Feb. 3 and offer free distribution of 1 billion songs from major labels, including Sony BMG, through Amazon’s DRM-free download service, according to a person familiar with the matter. Sony has been experimenting with DRM-free songs for about six months. The company began giving away DRM-free promotional downloads for recording artists that sell less than 100,000 units, and at least one artist gained mainstream exposure through the effort. “A lot of these tests have led people to believe that maybe this works,” says a Sony BMG executive who asked not to be identified. A Sony BMG spokesman declined to comment. Amazon also declined to comment on its DRM-free deals, beyond what it has disclosed in press releases.
The move by Sony BMG is especially noteworthy, given the company’s checkered DRM past. In 2005, Sony BMG incited a consumer boycott and was the target of lawsuits after it embedded CDs with a form of DRM that was surreptitiously copied to and buried in users’ PCs, leaving the machines vulnerable to viruses.
Abandoning an Outmoded Idea
Many, including music executives, consider the industry’s about-face long overdue. “This agreement is the first of many of these types we’ll be announcing in the coming weeks and months,” Warner Music Group Chief Executive Edgar Bronfman Jr. wrote in a Dec. 27 memo to employees explaining Warner’s breakthrough deal with Amazon. “Many have argued that we could and should have done this long ago.”
Labels used DRM software in an effort to prevent illegal sharing of songs on peer-to-peer networks, such as Gnutella. Instead, the restrictions served mainly to frustrate paying customers, forcing them to degrade the quality of music by first burning it to a CD before uploading it for play on the device of their choosing. Last year, consumers filed several class actions against the major record labels and, in a couple cases, against Apple, for restricting the devices and thereby controlling prices.
“DRM tends to punish the innocent more than the guilty,” says Rob Enderle, principal analyst at the Enderle Group, a technology research company. “It was hurting folks who were trying to follow the rules more than the folks who were pirating the music.”
Dancing to Apple’s Tune
Worse for the labels, the restrictions ultimately resulted in less control over the paid download industry. Because DRM tended to tie consumers to the store most compatible with their music device, the record labels unwittingly gave much of the power over music distribution to Apple, the manufacturer of the most popular digital music player, the iPod. Music industry executives say Apple has not wielded that power lightly. With control of an estimated 80% of the market for legally downloaded music, Apple pushed its preferred price of 99 ¢ per song over the opposition of several labels, which preferred variable pricing that would allow some artists to sell at a premium.
Apple CEO Steve Jobs also refused repeated requests from the recording industry and iPod competitors to license its DRM technology so that iTunes customers could easily put their music on other devices, without first burning it to a CD or otherwise altering the files. In a Feb. 6, 2007, letter titled “Thoughts on Music,” Jobs maintained that licensing its DRM technology to many providers would make it too difficult to keep its antipiracy code under wraps: “Licensing a DRM involves disclosing some of its secrets to many people in many companies, and history tells us that inevitably these secrets will leak.”
Jobs used the letter to pressure the music labels to abandon their own use of copyright protection technology. “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,” Jobs wrote. “This is clearly the best alternative for consumers, and Apple would embrace it in a heartbeat.” The public shaming helped Apple take the moral high ground at a time when it was under pressure from European regulators to open its DRM to let iTunes customers download their music to non-Apple devices. With his letter, Jobs pointed the finger at the labels for supporting DRM, silently suggesting the wrath of consumers and antitrust authorities should lie with them. Within two months, EMI, one of the smaller of the big four labels, offered to sell higher-quality, DRM-free tracks through iTunes for a 30 ¢ premium. By Oct. 17 the tracks were selling for 99 ¢.
A Play for an iTunes Competitor
DRM is by no means dead. Music subscription services such as RealNetwork’s Rhapsody and ad-supported services like Ruckus will continue to use DRM to ensure music stops playing when a subscription ends. But these services represent only a small segment of the market. “There won’t be any DRM of significance by the end of 2008,” says David Pakman, president and CEO of DRM-free music download service eMusic, the second-largest service after iTunes. “The only time you will see it used is for rental services.”
Rather than following EMI’s lead, other labels are hoping to create another Apple competitor in Amazon, which is willing to give the recording industry greater pricing flexibility. “That was a big part of it–countering Apple’s control in a positive way by creating more able competitors,” says Mike McGuire, a vice-president for research at Gartner.
Narrowing Apple’s lead won’t be easy. Just ask Microsoft, which has made meager headway with its Zune music player and online music store. Still, no service has yet been able to offer DRM-free music downloads from all four major labels. Amazon could yet become a contender.