When Microsoft announced that it will no longer support former MSN Music customers who want to play their DRM disabled music on new computers, DRM-hating consumer advocates justifiably cried out, “I told you so!” But this debacle is not just another example of the dangers of DRM: its also a reminder of the danger of overreaching end user license agreements, or EULAs
Just as DRM allows unprecedented corporate control over music and movies, the EULAs that Microsoft and other content vendors force users to click through before downloading songs, shows or films help enforce and expand that control. For example, EULAs usually claim that whatever happens, you can't sue the company--even for problems that are entirely of the company’s own making. And EULAs are often used to try to limit a company’s obligation to live up to its apparent promises.
What this means is that buying music (or software) on line is quite different from making your purchase at the store. When you buy a regular CD, you own it. You're allowed to do anything with it you like, so long as you don't violate one of the exclusive rights reserved to the copyright owner. So you can play the CD at your next dinner party (copyright owners get no rights over private performances), you can loan it to a friend or make a copy for use on your iPod. Every use that falls outside the limited exclusive rights of the copyright owner belongs to you, the owner of the CD. And if it won’t play, you get to bring it back and get a refund. Both technology and custom give vendors a lot more power when selling digital goods. Unlike the CD purchase, when I download from Microsoft Music, I don't just get the music, I get the “Service Agreement” as well. And if the Service Agreement tells me that there just might not be any Service, then I could be stuck with the digital version of an empty jewel box.
MSN Music’s EULA is a case in point. When active, MSN Music's webpage touted that customers could “choose their device and know its going to work”.
But when customers went to purchase songs, they were shown legalese that stated the download service and the content provided were sold without warrantee. In other words, Microsoft doesn't promise you that the service or the music will work, or that you will always have access to music you bought. The flashy advertising promised your music, your way, but the fine print said, our way or the highway.
Microsoft isn't alone. Many other DRMed music services also make false promises to customers including Apple iTunes, RealNetworks and Napster 2.0.
Which applies, the marketing promises or the fine print?
