Is Real’s Hack Of iTunes Legal?
Hypebot applauds Real Network’s new software which finally makes downloads purchased @ iTunes playable on devices other than the iPod. Allowing consumers to move the music that they have purchased from one device to another is essentail, but is it legal? According to this post from Cnet, “…legal experts say there’s a big difference between RealNetworks’ product and the work of code-crackers who have helped break through DVD copy protection, or who have previously helped strip FairPlay protection from iTunes songs.”
“Those underground programmers, at least in the United States, risk running into the Digital Millennium Copyright Act, which bars “circumvention” of digital copy protection. By contrast, legal experts note that RealNetworks is “hacking” Apple’s technology in order to protect music in its own way, not to pirate or otherwise copy it without permission. This kind of reverse engineering for compatibility purposes happens routinely in corporate America, and is allowed as long as competitors aren’t actually using copyrighted code, attorneys say. “
“What the DMCA was meant to protect wasn’t this,” said Ken Dort, an intellectual-property attorney with Gordon & Glickson in Chicago. “In fact what (RealNetworks) has done is what people do all the time. They buy the latest, greatest widget of a competitor and take it apart.”
Some attorneys have said Apple might have a better case under traditional contract or copyright law. The iPod comes with a license agreement that bars reverse engineering, and if Apple can argue that RealNetworks violated that agreement, the company might have a stronger case. “There’s a question as to whether those agreements are enforceable,” said Bruce Sunstein, a Boston patent attorney. “It is an area of uncertainty.”
