House Rep's Rap: Unshackle the CD
by Declan McCullagh
Thursday, March 07, 2002 5:00 a.m. EST
WASHINGTON -- Music CDs equipped with copy protection will, if Rick Boucher gets his wish, soon be as obsolete as eight-track cassettes.
The feisty Democratic congressman from Virginia says he plans to introduce legislation banning, or at least regulating, compact discs outfitted with anti-copying technology.
Few discs sold in America currently feature the controversial scheme -- but the recording industry expects that as worries over digital piracy grow, the technique will become widespread.
"Suffice to say, there probably will be a legislative response to ensure that consumer rights will be protected," Boucher said in an interview.
Boucher's complaints are twofold: Americans may not know they're buying crippled discs, and that the new discs don't work on all players. "The big problem initially is that consumers have no information that is complete and reliable about the disabilities which attend copy-protected CDs," Boucher said. "These CDs will not play in DVD players, not play on personal computers (and) not even play on all CD players."
His remarks come as a Washington-style war of words between Boucher and the head of the Recording Industry Association of America is escalating. In January, Boucher wrote to RIAA's Hilary Rosen complaining about copy-protected discs; Rosen fired back last week by calling them "a measured response to a very serious problem facing the music industry today."
In response to Boucher's prediction of legislation, Rosen promised that the recording industry steadfastly would oppose it.
Rosen said in a statement: "The notion of copy protection is certainly not new to the entertainment industry. Even computer software already employ various technology protections as appropriate for their marketplace and their consumers. The music industry deserves to do the same. Legislation to prevent self-help technologies would be unwise and unfair."
Boucher wouldn't give details on what approach he's considering -- obvious possibilities include ordering the music industry to stick labels on protected CDs, or an outright ban of that technology. "I'm considering a proper legislative response to these concerns," he said. "I'm discussing it with a large number of individuals."
Those discussions may take a while. Boucher said in an interview last July that he would introduce a bill to rewrite the Digital Millennium Copyright Act -- but nine months later, he has yet to do so. This week, Boucher pledged to introduce "the bill in the not-so-distant future."
Copy protection works by encoding deliberate errors onto a compact disc. The errors make it harder to burn copies but can render the discs unplayable on many computers -- and a few stereos -- by violating the "Red Book" standard for CD-Audio that Philips and Sony created in 1980.
Only two protected CDs appear to have been distributed so far in the United States: Charley Pride -- A Tribute to Jim Reeves, released by Music City Records and protected by SunnComm's MediaCloQ , and More Fast and Furious, a Universal Music Group soundtrack protected by Midbar's Cactus 200 . Both discs ship with warning labels and an advisory that they are copy-protected.
Prue Adler , the assistant executive director of the Association of Research Libraries, said her group endorses Boucher's approach.
Adler said that "as consumers, their expectations are certainly that they have these rights and privileges."
Jonathan Zittrain , an assistant professor at Harvard University's law school, said that it is currently legal to sell copy-protected discs. Zittrain said, however, that manufacturers could be liable under existing law if they do not clearly disclose that the CDs are crippled.
"I actually relish the government's finally turning its attention to the copyright arms race," Zittrain said. "With full public attention focused on the issue, there's an opportunity for Congress to help generate a moderate path on the issue, rather than one tilted too far to locking everything up."
Ira Rothken, an attorney who sued (PDF) over the Charley Pride -- A Tribute to Jim Reeves disc, thinks it's possible that protected CDs violate even existing U.S. laws.
"It could be considered a copyright misuse to not allow people access to works and to space-shift them," Rothken said. "If you told me that someone would not be allowed to listen to the music anonymously, that would cross the line. You cannot have digital-rights management technology if somebody has to give up their anonymity. People should be allowed to reasonably space-shift."
But in a decision last fall, the Second Circuit Court of Appeals saw things exactly the opposite way. The three-judge panel unanimously ruled: "We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original."
This dispute over music comes as Hollywood studios, fretting that online piracy of digital content will imperil sales, have asked Congress to require that all PCs and consumer electronics sport technology to prohibit illicit copying. Last Thursday, the Senate Commerce committee convened a hearing where the studios complained that Silicon Valley firms had not moved quickly enough in setting anti-copying standards.
Senate Commerce chairman Fritz Hollings (D-South Carolina) has drafted, but has not introduced, legislation called the Security Systems Standards and Certification Act. A version of the SSSCA obtained by Wired News would prohibit creating, selling or distributing "any interactive digital device that does not include and utilize certified security technologies."
Robert Zarate contributed to this report.
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