Apple's DRM software is, perhaps ironically, known as FairPlay. It controls the type of music that can be played on the iPod and, to date, Apple has been zealous in keeping it secret. This effectively restricts the downloaded music playable on the device to that which can be purchased from Apple's iTunes.
A number of on-line digital music retailers have asked Apple for a licence to the technology, so that their music can be played on the iPod. But to date, Apple has refused.
Music bought from these retailers can be played on the iPod but have to go through a longer and more complicated process of downloading and copying onto CD before being transferred to the iPod by means of a computer.
The interoperability issue may shortly come before the courts, following Apple's revelation in a quarterly filing with the US Securities and Exchange Commission that the French division of internet retailer Virgin Mega has lodged a complaint with the French Competition Council, over Apple's refusal to licence the DRM software. This, argues Virgin Mega, is anticompetitive under European law. But is it?
In an article published on its web site, a firm called Reckon has been weighing the likely effect of European competition law on the interoperability between the iPod and legitimate music download sites other than iTunes. Reckon's specialty is the interactions between markets and regulatory institutions.
The article acknowledges the interoperability problem and that European competition laws could require technology platforms to be more open. But it concludes that it is "unlikely" that Article 82 (which prohibits market abuse by businesses in a dominant position) could be used to implement compulsory licensing to progress simply from a "less focused" form of competition (e.g. competition between the iTunes Music Store and suppliers of music content on CD format) to a "more focused" form of competition (e.g. direct competition between the iTunes Music Store and other retailers offering content downloads to iPod users).
"Using competition law to achieve inter-operability," says Reckon, "seems limited to cases where this is necessary to address the threat that a market will lack competition altogether — e.g. markets where the iTunes Music Store"
