Despite Sony BMG's 'rootkit' public relations disaster last year, the music industry continues to push for access control.
Last year, Sony BMG quietly issued music CDs with access control software that was designed to limit the number of times the CD could be copied to a computer. The software was installed on user's computers without their knowledge and could potentially expose their systems to computer viruses. As a result of the incident, Sony BMG has removed the software from its music CDs. Also, government agencies are considering regulating the practice.1
Although this incident has been embarrassing and expensive to Sony BMG, the industry is still pushing access control as a solution to the failures of their business model. This has placed the industry in the awkward situation of exposing their intellectual dishonesty.
In a response to the U.S. Copyright Office over the Sony BMG incident, the industry (RIAA and others) now argues that making a backup copy of a music CD is unlawful:
creating a back-up copy of a music CD is not a non-infringing use2
Non-infringing use is legal. Additionally, the filing states that transferring music from your CD to your iPod may or may not be lawful:
The submission asserts in its third example, “device and format shifting,” that such activities “are unquestionably fair uses” of lawfully purchased CDs, ... but among those questioning this conclusion is the Register, who noted in 2003 that “proponents have not established that space-shifting or platform-shifting is a noninfringing [sic] use.”2
Footnote #46 elaborates on this point (emphasis mine):
See, infra, Section V(D), which addresses in detail space-shifting and format-shifting. Nor does the fact that permission to make a copy in particular circumstances is often or even “routinely” granted...necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case ...is simply a statement about authorization, not about fair use.2
In oral arguments before the Supreme Court in 2004, a music industry attorney argued that moving music from your CD to your iPod was a lawful use of your CD.
From the moment that device [the iPod] was introduced, it was obvious that there were very significant lawful commercial uses for it. And let me clarify something I think is unclear from the amicus briefs. The record companies, my clients, have said, for some time now, and it's been on their Website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod. There is a very, very significant lawful commercial use for that device, going forward.3
It seems that since then, the industry is having a change of heart (never mind that there has not been a change of law).
Now that there are legal means to purchase music online and transfer it to your PC, the industry is moving to prevent the transfer of music from CD to computer.
According to the filing with the Copyright Office3, it is currently still legal to listen to CDs that you purchase (at least until the RIAA has another change of heart).
Source:
1. Jennifer LeClaire. Sony Incident Leads Government to Consider Rootkit Ban.
eCommerce Times. February 17, 2006.
http://www.ecommercetimes.com/story/48932.html
2. Association of American Publishers et al.
Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies
U.S. Copyright Office. Docket No. RM 2005-11. February 2, 2006.
http://www.copyright.gov/1201/2006/reply/11metalitz_AAP.pdf
3. Oral Arguments before the U.S. Supreme Court Case No. 04-480.
METRO-GOLDWYN-MAYER STUDIOS INC. et al. v. GROKSTER, LTD., et al.
Argued March 29, 2005--Decided June 27, 2005.
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-480.pdf
© 2006 Michael Cale
