New Shackles On Your CD, Video Copying

In an effort to stem piracy, entertainment companies are placing new copy restrictions into their products.

Frank Thorsberg and Tom Spring

Making personal copies of things you've paid for--as backup, for example, or to use in multiple devices like your computer, MP3 player, and stereo--may soon be a thing of the past, or at least severely curtailed.

Supported by laws such as 1998's Digital Millennium Copyright Act (or DMCA), companies are preparing to incorporate copy-prevention technology into everything from audio CDs and online music to premium cable television and streamed video. Some of these plans are already in effect, with different levels of restrictions on the media playback.

"Digital technology makes it possible to monitor, record, and restrict what people look at, listen to, read, and hear," writes author and law professor Jessica Litman in her recent book, Digital Copyright. "Why, in the United States, would one want to do such a thing? To get paid."

In pursuit of that payment, companies are trying a variety of different models--it's all a work in progress.

And the latest copy-protection plans are the most controversial to date--especially those intended for the music industry. The battle between consumers and entertainment companies continues on Capitol Hill, where two important bills are in the works.

Music

Many people have fun copying music to create custom CDs, or converting tunes to a digital format like MP3 for a party playlist. But music labels see such copying as an attack on their core business, and most are starting to act to prevent it. Digitally locked CDs--even some by major artists--are already on the market.

Sony Music Entertainment, for example, distributed a promotional Michael Jackson CD single that Windows PCs could not read. And 'NSync's label, Jive Records, is selling copy-protected versions of the band's CD Celebrity. Though reluctant to talk about specific plans, BMG, Sony, and Universal all confirm they're testing copy protection on several sample and promotional CDs.

Today, about 200,000 CDs in Europe and the United States use Macrovision's SafeAudio technology, says Brian McPhail, the company's consumer software vice president. Another copy-control firm, SunnComm, reports that about 50,000 CDs in the U.S. use its MediaCloQ technology. Both companies expect those numbers to rise to the millions in 2002.

SafeAudio's protection scheme inserts small distortions that standard CD players filter out. CD-ROM and DVD-ROM drives can't block those distortions, so if you use your PC to play, rip, or burn such CDs the music will hiss and pop. Other technologies hide a CD's table of contents so your CD-ROM drive can't read it.

Some schemes may also prevent ordinary CD players from playing CDs properly: When BMG tested MidBar's secure CD technology in Germany in 2000, up to 4 percent of the 130,000 CDs sold were returned for that reason.

Legal Action

One lawsuit has been filed already by a California woman, Karen DeLise, who purchased the Charley Pride: A Tribute to Jim Reeves CD. Her suit claims copy protection constitutes an unfair business practice. She could not play or copy the CD on her PC and instead had to provide personal information in order to download encrypted song files.

Her attorney, Ira Rothken, contends in the suit that record labels should give reasonable notice to buyers about "functionally inferior CDs" to let users make an informed buying choice.

The Pride CD does carry a disclaimer stating it is for play in audio CD players only, and that licensed song copies are available for download. It does not mention PCs specifically, and does not tell users they have to divulge personal data to get the tracks. (On 'NSync's Celebrity, a disclaimer printed in a corner states, "This CD is not playable on computers.")

Fair Use?

Fair use and user expectations are at issue, says Lee Black, director of research at market research firm Webnoize. Fair use is a legal concept that basically says you aren't violating copyrights if you copy something you've bought, like a song, as long as that copy is for personal use, not for profit. Labels know users expect to be able to turn their CDs into MP3s, Black says, "but labels don't agree that is a consumer's right."

The DMCA backs the industry's view--it makes it illegal for anyone to bypass security measures to copy a disc, whether you're a pirate burning thousands of CDs for sale or a home user ripping a CD you own for a party playlist.

Plans are in the works to accommodate users' desire for digital tunes. In one scheme, CDs would come with both standard--but protected--CD music and pre-ripped tracks. The pre-ripped files would be bound by digital rights management (DRM) rules, which let the labels control which devices can play the tracks, and how often the tracks may be copied or transferred. This approach doesn't satisfy consumers who want true CD-quality (meaning uncompressed) digital music files.

The music industry is also acting online. Lawsuits forced out Napster's free music-sharing network; similar peer-to-peer services are now targets. Companies want to replace them with paid services that offer downloadable, but protected, tunes. In December, RealNetworks launched its RealOne service; AOL and Microsoft have offerings on the way, and the major labels are working on their MusicNet and PressPlay services.

"The music industry, with digital music services, is really trying to convert consumers to consume music as a service, not as a product," says P.J. McNealy, Gartner Group senior analyst. "It's a huge shift," and it's the labels' biggest challenge, he adds.

Video

The video industry is making its own moves, but consumers may be less resistant here because DVD movies have always carried copy protection and there's great familiarity with--and acceptance of--the pay-per-view model.

Copy protections appear in everything from VHS analog tapes to set-top boxes, and more. A pay-per-view movie can already be scrambled so it plays properly but won't allow a clean copy. Such technology is so widespread that further restrictions could be applied easily--and they likely will be--once video-on-demand services launch.

Carol Flaherty, video technology vice president at Macrovision, a major player in this market, points out the company's technology will also accommodate DRM, so content providers can choose to allow one or more copies. Some movie studios are sensitive to users' arguments that under certain conditions, fair-use copying may be legitimate, she says.

As DVD recorders replace VCRs in coming years and as more cable systems go digital, even some cable TV may have DRM rules. Andy Parsons, senior vice president at Pioneer Electronics, speculates that once a purely digital connection exists between your TV and your recorder, the signal--say, an HBO movie--may have a code that lets you record to DVD once, but prevents copies from that disc.

And in 2002, five major studios will enter the downloadable video market with MovieFly, a service that will use a video rental model. At first, you won't be able to transfer the movie out of the PC you've downloaded it to; later versions may let you do so.

Killing Free Stuff

Companies know protection schemes aren't foolproof--numerous high-profile hacks underscore the point. However, that problem will not cause content owners to withhold content, Flaherty says.

But that content will be restricted. Whether users will want it with such strings attached is a separate question.

In Congress: Tug-of-War Over Copy Laws

The Digital Millennium Copyright Act represented the first serious revision of federal copyright law in two decades. Even more changes may be around the corner.

One of the DMCA's original sponsors, Representative Rick Boucher (D-Virginia), now wants to amend it to balance the fair use rights of consumers with the protections afforded copyright holders.

"What the DMCA does is try to outlaw burglar tools," Boucher says. But like hammers and wrenches, some of these technology tools have legitimate purposes and should not be outlawed, he says.

In his proposal, circumventing copy protection would be criminal only when its purpose is copyright infringement, such as in mass piracy cases. For exercising fair use rights or other benign purposes, circumvention would not be criminal.

Senator Fritz Hollings (D-South Carolina) believes the DMCA does not go far enough, however.

The Senate Commerce Committee chairman is readying legislation requiring that copy-protection controls be built into new PCs and other consumer electronics gear.

Even before the ink was dry on drafts, the Security Systems Standards and Certification Act had support from big content creators like Disney and News Corp., as well as major entertainment industry groups. The bill sets aside an 18-month period for computer, electronics, and entertainment experts to devise an industry-standard method of copy protection. There's no word about including representatives of ordinary users.

Like much pending legislation since September 11, committee hearings on this bill, originally set for October 25, were postponed and were not reset at press time.