DoubleTwist is Dancing in Dangerous Legal Territory

Posted by: Peter Burrows on February 19

As Arik pointed out in his post today, “DVD Jon” Lech Johansen is back in the game of trying to free digital media from corporate strictures on its use. While he hacked the copyright protections on DVDs in 1999 and on Apple’s Fairplay DRM in 2004, that was after coming home from his day job. Now, he’s a founder of doubleTwist, which released a beta version of a new desktop app that makes it possible to play content purchased at iTunes on other devices, including Nokia phones, Sony’s PSP and Windows Mobile smart phones. To be clear, this isn’t just about iTunes. The goal is to “simplify the flow of media across devices and social networks.” But since many people have so much of their digital media on iTunes, freeing it from Fairplay’s protection is the big news.

But is it legal? The company says yes, of course (Besides the Electronic Frontier Foundation, it’s also hired high-powered Daralyn Durie of Keker & Van Nest LLP). It’s argument is that its software doesn’t do anything millions of people don’t already do when they want to move an iTunes song (or for that matter, any DRM-protected song) onto a non-compatible device: they burn it to a CD, and then re-rip it in MP3 form. Johansen points out that when you install doubleTwist’s software, it actually plays all of the songs as it copies into the client application—just as you would when going through that laborious re-ripping process. “We don’t let you do anything you’re not already allowed to do. But it should be a one-click experience.”

Here’s how Fred von Lohmann, an Electronic Frontier Foundation lawyer that is advising Doubletwist, explains it:

The transcoding from Fairplay to MP3 is done by the user themselves, on their desktops. The software simply automates the process for them. Just as it was legal for Sony to sell a VCR that allowed consumers to time-shift TV, so, too, DoubleTwist is a tool that allows consumers to format-shift their own music.

No DRM is circumvented within the meaning of the DMCA. You have to have purchased the songs and your computer must be "authorized" by Apple for playback. And, in any event, with all the major labels releasing all of their music in MP3 form, it seems unfair to leave early adopters (the folks who were paying for music, rather than just downloading it for free from P2P networks) with shackles on their music.

No doubt, he's right on that fairness issue--an issue that will become far more glaring if, or rather, when the labels finally cut a deal to let Apple sell their music with no DRM.

Still, this legal argument sounds a bit too slick to me. It's one thing for me to take the time to copy that VHS or convert a album or two into MP3 form. It's another to have a technology that does your entire collection in a matter of minutes. If Comcast introduced a service that let me automatically convert all of my VCR tapes into digital files I could watch on my TV, PC or phone, that would be more than okay by me. But would it be legally okay? Would it really pass muster under the DMCA?

To find out, I called Columbia law professor and Net Neutrality advocate Tim Wu. While he's sympathetic to what doubleTwist is trying to do, he's concerned about their legal argument. "Moving your CDs to your computer, or moving your CDs to your iPods is clearly fair use. But they’re going a step further. They’re decrypting content and that's definitely a gray area. As much as I’d like it to be otherwise, there’s not a clear exception for decrypting something because you’re allowed to do it under fair use.”

He pointed me to section 1201(2) of the DMCA, which states that it's not allowable to "traffic" in any product or service that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title."

So what's likely to happen? Probably nothing. Apple has nothing to gain in the PR spin game by going after DVD Jon, friend of digital consumers everywhere. And most content owners probably like the fact that their stuff can be seen more easily in more ways.

The only caveat is if doubleTwist catches fire. Then, Apple might be forced to respond. But that's a long-shot. I downloaded the software and tinkered just a bit. The application seems pretty darn slick and easy to use. Still, anything that involves spending more than a few seconds dragging and dropping files between applications and devices just isn't much fun, and isn't likely to be a mainstream hit.

But at a time when so much is in flux regarding our digital rights, it's an interesting case to contemplate--even if it never gets to court.

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