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Protected discs do not play on Macs, may break fair use legislation Print E-mail
Thursday, 07 February 2002
The first copy-protected albums are now out there in the United States and Europe, and as might be expected, they have unleashed a storm of controversy.

Universal Music Group (UMG) has been obliged to set up a Web helpline for disgruntled purchasers of the company’s latest copy-protected CDs.  The copy protection system used on the album "More Fast & Furious" (Island Records), the first of these releases, is Cactus Data Shield (CDS), from Israeli company Midbar Tech, which claims to be "first to market with a multi-strength and multi-layer copy control product line." CDS is designed to allow playback on any regular CD player, but to play the disc on a computer’s CD drive, you have to use the included media player application. This only runs on Windows PCs, leaving Macintosh computers – widely used by musicians and other creative people – unable to play the discs. This has drawn complaints from record buyers (a significantly higher proportion of whom are Mac users than the average computer buyer) and people in the industry alike. UMG’s protection feature, one of several schemes currently being introduced, also stops users from "ripping" the CDs to MP3 for use on portable players.

The fact is, however, that the technology is by no means perfect. The helpline site notes that UMG has authorized all retailers to accept returns, and lists the problems that qualify for a full refund, including an inability to play the disc on a CD or DVD player, degraded audio quality, control problems (such as fast forward or rewind not working or long delays after pressing a button).

A one-sheet sent to retailers by Universal points out potential problems with "More Fast & Furious" and notes that the discs are stickered to alert consumers, going on to say that the copy-protection technology "may" make the disc "unplayable on… DVD Players, Game Consoles, and Macintosh computers." Retailers are alerted to the existence of the helpline and an informational insert in the disc packaging.

Bob Bernstein at UMG Corporate Communications provided Audio Revolution with Universal’s official statement, which notes, "When music is made available on the Internet without permission and the appropriate licenses, artists and other creators are deprived of their livelihoods. This is impacting the entire music business and unless solutions are found, the incentive to create will diminish… the integration of copy-protection technology into some of our CDs is a first step in measuring its effectiveness in a quickly evolving marketplace." The statement also refers to Universal’s involvement in developing "new ways to make music available", presumably a reference to its new online download service.

An unnamed spokesperson at the UMG helpline provided some additional comments. "While the CDs with copy protection may not be playable in a limited number of CD players, UMG is currently working with our technology providers to achieve 100% playability. We also hope to include Macintosh-based playability on copy-protected discs in the future." They concluded with a line that also appears in the Universal statement, "We have not finalized our plans for 2002, nor have we made a commitment to put copy protection on all of our CD releases."

Retailers say it’s too early to tell if there have been increased returns or loss of sales as a result of copy-protection. "Currently, we are not seeing a significant amount of returns vs. sales of [More Fast & Furious] compared to a regular album," says Tower Records’ Sara Hanson. "It’s too early to tell what the overall impact of the new format will be on the retail market. It may be a bit premature to accurately analyze its effectiveness."

Cactus Data Shield and other emerging CD copy-protection technologies use several different techniques to make the audio inaccessible to computer drives. Some place audio data in unusual places on the disc, while others include dead areas between tracks that a computer CD drive can’t handle but a CD player is supposed to skip over.

Many techniques introduce intentional flaws into the audio data stored on the disc. These "deliberate dropouts" are supposed to be capable of being handled by the error-correction capabilities of a standard CD player, but the CD drive in a computer expects a flawless data stream, and fails when it encounters the dropouts. However, it is becoming clear that many players, especially older ones and portable units, cannot deal with the dropouts either; there is concern that as the disc becomes worn, the dropouts will become more problematical; and the fact that the error correction capabilities of the system are being called into play means that the player is "guessing" at the data that should be in the gaps, leading to audibly inferior sound quality.

There’s another problem for Cactus Data Shield: some computers with NEC DV-5700A DVD drives, supplied primarily via the OEM market to computer manufacturers like Dell, can see right through it, according to a recent TechTV report by Patrick Norton. Dell and other systems fitted with the drive not only cannot see the copy protection, they also allow "ripping" to MP3 files all except the first song on the disc (which cannot be read). The special files that Cactus writes to the disc, and the changes made to the TOC (Table Of Contents) are also ignored by such systems.

There are also legal and other issues, some of which were pointed out in a letter to record company executives by Democratic Congressman Rick Boucher last December. In 1992, the record companies lobbied hard for US legislation that gave purchasers of recorded material permission to make limited digital copies for "fair use" purposes including, for example, making copies of music they have purchased to listen to in the car or on personal audio players, in return for a royalty on blank recording media. This is why "consumer" blank recordable CDs – which contain a special header code required for use in stand-alone consumer audio CD recorders – cost many times more than "professional" ones without this feature. But if these legally-permitted copies are no longer possible, then there is no legitimacy for the blank media levy. And in addition, it may actually be illegal to stop such copies being made.

Macrovision, another company offering CD copy-protection measures, has responded to some of these criticisms with the release of Version 3 of its SafeAudio system, which among other "improvements" is intended to allow digital rights management and "fair use" copies. The new version is also alleged to prevent copying with methods that were publicized within days of the system’s launch.

Meanwhile there is some doubt as to whether or not the copy-protected CDs actually meet the criteria to be called "Compact Discs" at all. The data structure of the CD, licensed by every record company, is tightly defined in a standards document called the Red Book. Only Red Book compatible discs are allowed to carry the CD logo and be marketed as "Compact Discs". In a recent Reuters news story, Philips copyright office head Gerry Wirtz is quoted as saying that the five companies currently introducing copy protection (UMG, Sony, BMG, EMI and Warners) "don’t know what they’re doing" and notes that Philips has had to inform labels that what they are selling are not Compact Discs at all, and must carry warning notices saying so. They also cannot use the familiar Compact Disc logo. Wirtz further commented that it was not possible to retrofit copy-protection measures to the CD format without risking losing universal playback capability, and that even protected discs that play today might not play when they get older or worn, as the CD player’s error-correction system could become overloaded.

On the face of it, any attempt to circumvent the copy protection on the new discs would fall under the purview of the Digital Millennium Copyright Act (DMCA), which makes it illegal not only to crack a protection scheme but also to tell anybody else how to do it, or even publish research on copy-protection. You might be in contravention of the Act if you simply buy a Dell computer – or at least if it could be proved that you bought one specifically to circumvent Cactus Data Shield.

Not so, says Philips, because the new CDs restrict playback of the discs, not the copying of them per se. This, however, may become a matter of legal opinion, as the record companies could easily claim that the systems were a means of encryption, and thus covered by the Act. The DMCA is so all-encompassing that even if this claim was refuted as Philips contend, there are several other provisions that would cover the protection schemes under the Act.

Congressman Boucher has proposed to introduce a bill that would remove the DMCA’s anti-circumvention clause making it illegal to bypass such copy-protection schemes, arguing that if someone wants to play a CD on their computer and cannot due to copy-protection, bypassing this protection should not be a criminal act. It’s hard to say what the chances are of such a measure passing.

In the meantime, you know where to complain. The other thing you can do, of course, is to refuse to buy the protected discs.

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