Apple DRM'ing Earphones? Maybe not.

Apple gained a lot of positive publicity a few months ago by removing Digital Rights Management (DRM) from iTunes music. However, there's a bit of a backlash in various online geek forums over claims that the new iPod Shuffle includes a chip that uses 'DRM' to ensure that only Apple-made (or perhaps Apple-approved) headphones work with it. To put this into context, the new Shuffle has all its controls on the headphones themselves, so ordinary headphones won't work with it.

But is this really 'DRM'? It turns out that manufacturers in the US have indeed put such compatibility chips into devices and then tried to use the Digital Millennium Copyright Act (DMCA) to attack competitors who sold compatible accessories without permission. A leading example was Lexmark v Static, where Lexmark used a chip in printer cartridges to ensure that they could not be refilled and resold. However, the US courts were not sympathetic to Lexmark's claim that bypassing such protection counted as illegal circumvention under the DMCA, noting that:

"We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case"

Is Apple trying to lock in sales of headphones? It would seem unlikely that it was ignorant of the Lexmark case, and other commentators have cast doubt on the 'DRM' analysis - see some of the comments at this post. 

All this applies to the US, of course. What about the EC or UK? It is hard to be sure without a more detailed legal analysis (which, sad to say, I'm a little busy for right now) but the English courts, and indeed the House of Lords, have not historically been sympathetic to attempts by original manufacturers to creatively use IP law in order to secure a monopoly in accessories and spares, most notably in Leyland v Armstrong where it was held that copyright law could not be interpreted so as to provide restrictions against spares suppliers that design law did not. Furthermore, any argument based on copyright in the chip software would presumably run into the 'emulation is not copying' decision in Navitaire v Easyjet and Nova v Mazooma. 

The moral: be careful of jumping to conclusions about supposed IP-related corporate evils. After all, there are enough real examples out there that it's hardly necessary to invent more...