CNN has a good article on DVD Jon's reverse engineering of Apple's Fair Play DRM. He now licenses his work to companies that want to put DRM-protected music on the iPod, or make music players that can play songs from iTunes. This is a good development despite the gloomy predictions of DRM critics, most of whom don't want to see reverse engineering and interoperability allowed under the DMCA as that would pull the rug out from their calls to repeal it.

Johansen has written programs that get around those (Apple DRM) restrictions: one that would let other companies sell copy-protected songs that play on the iPod, and another that would let other devices play iTunes songs. Starting this fall, his new company, DoubleTwist, will license them to anyone who wants to get into the digital-music business...

To let other sites sell music that plays on the iPod, his program will "wrap" songs with code that functions much like FairPlay. "So we'll actually add copy protection," he says, whereas the DMCA prohibits removing it. Helping other devices play iTunes songs could be harder to justify legally, but he cites the DMCA clause that permits users, in some circumstances, to reverse-engineer programs to ensure "interoperability."

UPDATE

Another tech policy blog recently portrayed a consumer who has 180gigs of digital music, plays his songs on his SmartPhone and iPod, and gets music from various online services. This is a great example of how consumers enjoy current digital music offerings by finding substitutes for incompatible DRM schemes. But somehow the author takes it as a lesson against DRM and the DMCA by stating that the consumer does not buy from iTunes b/c of its DRM restrictions and pointing out a limitation to achieving interoperability:

...writing a utility to transfer music from one format to another is effectively illegal. If the DMCA weren't on the books, someone could write a slick little utility that would take the music in your iTunes folder and convert it to Plays for Sure or Zune formats. But because the DMCA prohibits circumvention regardless of the reason, that's illegal...

This is simply misleading, writing a coverter to change DRM schemes is probably an inefficient way of inducing interoperability. DVD Jon didn't bother, he figured out how to link between DRM schemes. The tech policy blog author seems to just want to scare folks from reverse engineering so he can argue against the DMCA.

As I've written earlier, there is a lot of flexibility in the DMCA. When reverse engineering results in productive interoperability, courts will overlook infringing activity done in the course of reverse engineering(although courts will ensure that the resulting product does not itself constitute infringement). As for iTune's use contract preventing reverse engineering even for interoperability, some scholars argue that current law would preempt that contract.

The author of the other tech policy blog also commented on the CNN article I cite above, but in an odd way. He questions the legality of DVD Jon's actions yet defends it by saing that "Johansen's actions clearly are within the spirit of the law." Later, discussing the DMCA's reverse engineering exemption he writes "the reverse engineering exception is as clear as mud" and goes on to basically argue for taking the DMCA off the law books because its "too vague," and "gives no clear guidance." This is a funny reading of the law. These grounds sound like calls for clarifying a law, but the confused reasoning of the author tells him that an all or nothing approach to the DMCA is a lot easier to manage.