Apple Facing Trial Over Whether Its Use Of DRM Violated Antitrust Laws

[Mike]

When Apple first launched the iTunes store for music, it had DRM deeply embedded in it. According to reports around the time, this DRM was a key part of allowing Apple to get into the business of selling music. The labels demanded strong DRM. It didn't take long for most people to recognize how the labels' own demands for DRM actually gave Apple tremendous leverageover the record labels by basically handing the market over to Apple while making it that much more difficult for a competitor to jump into the space. While, years later, Apple and the labels finally ditched the DRM on music, one of Apple's competitors, Real Networks had tried to hack its way around Apple's DRM, which was called FairPlay, with its own DRM, called Harmony, that more or less reverse engineered Apple's DRM. Apple responded by changing things so that Real's music wouldn't work on iPods (yes, this was back in the day of iPods). Real adjusted... and Apple broke it again.

While all that went on a decade ago, a lawsuit over whether or not Apple's use of FairPlay to keep out Real's music violated antitrust laws appears to finally be heading to trial:

In this lawsuit, plaintiffs are claiming the anti-Harmony measures in iTunes 7.0 broke antitrust laws, because it had the effect of illegally raising the price of iPods. Users were continually forced to either stop playing any songs they had bought from the Real store, or convert them to a non-DRM format, for example by burning the music to CD and then ripping the CD to their computer.

That produced "lock-in" to the iTunes environment and increased consumers' "switching costs," the plaintiffs argue.

Apple sought to have the lawsuit tossed out, but the judge is letting it go forward. While the specifics of this case now seem like ancient history, the eventual results, should it get very far, could be interesting for other makers and users of DRM (Amazon might want to pay particular attention). From the judge:

That theory is intricate, but ultimately it amounts to a charge that Apple's release of 7.0 unlawfully maintained Apple's monopoly in the market for portable digital media players by making demand for iPods less elastic. Specifically, plaintiffs claim that 7.0 resulted in an increased "lock-in" effect for iPod owners who purchased songs online. Lock-in, according to plaintiffs' principal economics expert, "is a form of foreclosure that arises from actions that increase the cost to consumers of switching to a product that has better quality and/or a lower price."....

Plaintiffs offer expert opinion that Apple, by counteracting Harmony, "raised the cost of switching from iPods to competing portable digital media players by eliminating the ability of consumers to collect a library of downloads that could be played on all players." (Id.) That is, 7.0 made iPod owners unable to play songs purchased from iTS competitor Real and thus pushed them to make their online song purchases only on the iTS. As a result, it discouraged iPod owners from buying a competing, non-iPod digital portable music player when it came time to replace their iPods due to loss, breakage, or a desire to upgrade. (Id.) Such owners would have to either forego use of the songs they had purchased through Real (as well as any other online music store besides iTunes, though that is not part of the damages alleged in this case), repurchase such songs through other, iPod-compatible means (for instance, iTS or physical CDs), or convert music bought from Real into a non-DRM format, for example, by "burning" that music to a CD and then "ripping" the CD onto their computers in a file format with no DRM, from whence the songs could then be loaded on their iPods. These increased "switching costs," plaintiffs argue, locked iPod owners into continuing to purchase iPods, notwithstanding the allegedly similar or better quality of and lower prices of competing products. They also locked out owners of non-iPod portable digital media players who had downloaded songs from the Real store. The effect of both lock-in and lock-out, plaintiffs say, was to reduce competition in the market for digital portable music players and to reduce the price elasticity of iPods, which permitted Apple to charge a supracompetitive price therefor.

While other DRM situations may not be quite as involved, the idea of using DRM as a form of lock-in, increasing switching costs is clearly a legitimate concern. Having DRM present a potential antitrust concern could make for some interesting situations for companies today who rely on DRM.

Originally Published: Mon, 06 Oct 2014 20:30:00 GMT
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