• by Wendy Davis  @wendyndavis, February 22, 2008

Jon Lech Johansen, the Norwegian hacker known as "DVD Jon" for creating software that bypasses copying restrictions on DVDs, has now unveiled a program that enables people to get rid of digital rights management restrictions on iTunes.

A beta version of the software, touted as a tool that lets people manage media across a variety of devices, was released this week by the San Francisco-based company DoubleTwist Ventures.

The program, also called DoubleTwist, allows users to easily convert DRM-protected tracks, such as those sold at Apple's iTunes, into MP3 files. Once files are in MP3 format, users can play them on any portable device, not just Apple's iPod. DoubleTwist also lets people transfer photos from their friends' Facebook pages to cell phones.

But for all its convenience, there are significant questions about whether this software is legal under the Digital Millennium Copyright Act, which prohibits the circumvention of technological measures that control access to digital media.

"Anything that strips out DRM sounds problematic," said Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law. But, he adds, whether DoubleTwist violates the DMCA depends on a host of technological factors.

The Electronic Frontier Foundation, which is representing DoubleTwist, says the program is lawful because it doesn't circumvent Apple's software, but rather enables owners to make new copies of files they have bought. EFF lawyer Fred von Lohmann said using DoubleTwist to create a DRM-free track is analogous to using a tape recorder to make a copy of a purchased song.

"The songs are played back in real time, with the authorized Apple key, and then re-recorded," he said. "The bottom line here is there's no circumvention."

He added that other programs that also allow people to record media files on their computers have been available for several years without triggering lawsuits.

Lohmann also said he thought it unlikely that record labels would sue because they are now selling DRM-free tracks at sites like Amazon.com.

Apple declined to comment.

Should DoubleTwist land in court, however, it's not clear that judges will agree that the program doesn't circumvent restrictions.

Wendy Seltzer, a fellow at the Berkman Center for Internet & Society and visiting assistant professor at Northeastern University School of Law, said that much will depend on how closely courts are willing to examine the technical details of the software.

"If this is playing back the file, or using software to play back the file, then it's operating after the file has already been accessed, so there's at least an argument that it's not circumventing any access controls, but merely going through a door that's been legitimately unlocked," she said. The statute itself defines circumvention as bypassing a "technological measure" that controls access to a work.

But, Seltzer added, some judges might decide that the DMCA was intended to prohibit software such as DoubleTwist, regardless of the technology behind the program. "When a big record label or movie studio comes to the courts complaining about piracy, there is some tendency to take those claims at face value," she said.