HOWZAT

Johansen, who testified in the case, has become something of an icon to geeks. When he announced on his blog that he was selling the old iPod he had used to break Fair Play, a Berkeley researcher bought it to keep as a souvenir.

“We all talk about disruptive forces in business,” said Mike McGuire, an analyst at Gartner Group. “This guy is a disruptive force unto himself.”

There’s an obvious question — isn’t opening the iTunes system illegal? There is no obvious answer. Fair Play is not patented, most likely because the encryption algorithms it uses are in the public domain. And Johansen said he is abiding by the letter of the law — if not, perhaps, its spirit.

To let other sites sell music that plays on the iPod, his program will “wrap” songs with code that functions much like Fair Play. “So we’ll actually add copy protection,” he said.()

Helping other devices play iTunes songs could be harder to justify legally, but he cites the DMCA clause that permits users, in some circumstances, to reverse-engineer programs to ensure “inter-operability”. “The law protects copyrights,” he said, “but it doesn’t keep you locked into the iPod.”

Johansen isn’t the only one who feels that way. In 2004, Real Networks released a program called Harmony that would allow songs from its Real Player Music Store to play on the iPod.

Jobs memorably accused the company of using “the ethics and tactics of a hacker” and threatened to sue. Instead, Apple released a software update that made Harmony ineffective — although Real subsequently fixed that.

In America the courts have traditionally allowed inventors to reverse-engineer products to determine how they function. But the DMCA allows programmers to do that only in certain cases.

“What [Johansen] is working on is in the spirit of the reverse-engineering the courts have been most friendly toward,” said Gartner Group’s McGuire, who has informally given Johansen advice. “But the law is untested, and the case is complicated.”

The most relevant legal precedent is a case in which the video-game maker Blizzard sued an internet service provider that hosted an unapproved server where people could play its games, which the court found to be a DMCA violation.

“On the surface, Apple would have a good case, especially when it comes to making iTunes songs play on other devices,” said Robert Becker, a lawyer at Manatt Phelps & Phillips. “Apple would say you’re buying music under certain restrictions.”

For a man so intent on changing the way music is sold, Johansen isn’t a big fan himself. “I’ve probably bought 10 CDs in my whole life,” he said.

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