It’s been four days since we noted that Zune’s wireless file sharing sounds an awful lot like a form of viral DRM that may be in violation of the Creative Commons licenses. This afternoon Cesar, the Zune Insider, has stepped up to clarify his original comments:
I misspoke (mis-blogged) on last week’s post. We don’t actually wrap all songs up in DRM. Zune to Zune Sharing doesn’t change the DRM on a song, and it doesn’t impose DRM restrictions on any files that are unprotected. If you have a song – say that you got ‘free and clear’ – Zune to Zune Sharing won’t apply any DRM to that song. The 3-day/3-play limitation is built into the device, and it only applies on the Zune device: when you receive a song in your Inbox, the file remains unchanged. After 3 plays or 3 days, you can no longer play the song; however, you can still see a listing of the songs with the associated metadata.
In an email exchange with Cesar this afternoon, I clarified that the 3 day or 3 play limitation will still be in effect for ALL shared music. After your trial listen expires your Zune will simply stop playing the song. The file and associated meta-data will remain on your device – it just won’t be usable.
Some might argue that this constitutes a form of hardware-based DRM rather than software-based DRM, but I suspect that this approach may be enough to satisfy the terms of the Creative Commons licenses (if not the spirit of those licenses).
I’m not sure exactly what users are supposed to do with their dead songs once Zune refuses to play them. It seems likely that this limitation will eventually prove to be rather easy to circumvent – at least for non-DRM’d songs. And if the songs aren’t really encoded with DRM, then circumvention may not be in violation of the DMCA.
Regardless, the concept of viral DRM is not dead. We’ll have more coverage on viral DRM later this week.