This column first appeared in Business & Finance magazine in April 2007.

DR STRANGELAW: Or how I stopped worrying and learned to love IPRED2
Richard Delevan

Apple CEO Steve Jobs has a lot to answer for. Earlier this year he called on the music industry to stop insisting on the use of copy-protection software, so-called Digital Rights Management (DRM), as a condition of selling music tracks online. Last month EMI became the first of the big music companies to agree. And as the iPod-wielding digital messiah stood on a London stage with some of his music industry antagonists, Jobs promised that consumers could expect the whole industry to look a lot more like iTunes. Simple, easy-to-use, easy-to-enjoy. The last thing Steve Jobs would want is for you to feel like a criminal.
Other record labels haven’t yet followed suit, but some, including Universal Music, are trialling DRM-free music tracks. The consumer benefit is obvious. To date, Apple’s iPod has had a dominant market share of MP3 players (more than 70% in the US, similar numbers in Britain and much of Europe). But songs purchased via the company’s online iTunes store could not be used elsewhere. Now other MP3 players will be able to play the non-DRM tracks. As Jobs pointed out, this is simply bowing to an existing reality of consumer behaviour. For the music industry, EMI represents a repudiation of more than a decade of music industry policy, labelling as ‘piracy’ any behaviour it deemed appropriate, suing file-sharing pioneer Napster out of existence (only to see a dozen imitators spring up) and standing on the beach ordering the tide not to come in.
As Standard & Poors pointed out after the announcement, with worldwide CD sales falling for most of this decade, the music industry is turning to doing the right thing after having exhausted all the other options.
But if this is a war about to end there’s a huge unexploded bomb about to go off. It’s called IPRED2, and having passed out of the EU parliament’s legal affairs committee last month is scheduled for a vote by the full European Parliament on April 24. IPRED2 (Intellectual Property Rights Enforcement Directive) would require EU member states to consider infringements of intellectual property rights to be a criminal, rather than a civil, matter.
The original language of the law was so sweeping it could have made criminals out of entrepreneurs who failed to patent their idea first or didn’t use a trademark properly in a magazine. On copyright, the bill not only wanted to make criminals out of gangsters with pirate CD factories, ‘intentionally infringeing’ copyright on ‘a commercial scale’, but would have included anyone who ‘accepted’ or incited infringement. This has sent digital civil libertarians - not to mention university students whose file-sharing appetites were not deterred by sample lawsuits - into apoplexy. Businesses - well, businesses with a disproportionate share of ex-file-sharing 20somethings - also started to worry. Those provisions were interpreted by ISPs and open-source software and video game writers as potentially including their whole industries.
Coming at a time when Google is being hammered by Viacom in the US for allegedly inciting people to break copyright on its YouTube website, it seems that just at the moment where the music industry - or at least EMI with the help of Steve Jobs - was seeing that its own commercial future relied not on threatening its customers with lawsuits but in giving them the freedom they would take anyway, we may be on the verge of seeing a lawyer-led clampdown on the extraordinary flowering of business ideas and technology loosely called ‘Web2.0′.
There are some reasons for hope, however.
First is that there are powerful upstart interests which see this clampdown for what it is - an old order attempting to abuse existing law and new legislation to cling to power - and see their own future imperilled. Steve Jobs could be sitting in stir at this very moment under IPRED2’s early version (or rather under laws in those EU states who passed implementing legislation). So here he was in a French jail, prosecuted after a complaint by the Beatles’ record label, Apple Corps, for criminal infringement of the word ‘Apple’; an indictment pending off a complaint from Cisco that it had the trademark to ‘iPhone’, not to mention an anti-trust investigation from Brussels because iTunes was too successful. This last bit is what is happening in the real world, and may have contributed to Apple’s embrace of DRM-free music. But at least Jobs knows - has always known - that the future lies with empowered, not cowered, consumers.
Second, profit-maximalising capitalists don’t let good ideas die, no matter who doesn’t like them, if there’s money to be made. Even if it’s counter-intuitive, like open-source software or software as a service instead of a product. Industry embrace of it - led by brave early moves by old Colossus IBM and new Galacticos Google - has accelerated whole new business models in software and business process management. To describe infinitely customisable software for use by business from different sources of data, they’ve even appropriated a term from the underground music scene. ‘Mashups’ used to refer to copyright-lawsuit-baiting DJ tracks that combined bits of two or more disparate songs to create a novel reinterpretation. One fantastic example was a hybrid of the Beatles’ “White Album” and hip-hopper Jay-Z’s “Black Album” in order to produce, wait for it, the “Grey Album” - promptly sued into deep underground by EMI’s lawyers. Now IBM has for two years been sending out press releases about “Enterprise Mashups”.
Third, while the EU, and in particular its parliament, is capable of monumental stupidity, even IPRED2’s advocates admitted it was badly drawn, and some more noxious elements were removed at committee stage. It still may go down to defeat on April 24 - particularly if Ireland’s indigenous and multinational software, internet and games companies were to wake up and pressure MEPs to vote against.
Failing that, there’s always the chance to kill it at national government level. Or to hope that Steve Jobs will swoop into Brussels with his cape and save us all, again.

Richard Delevan is business editor of the Sunday Tribune. rdelevan@tribune.ie