CDs That Block Copying May Herald a Revolution

“More Fast and Furious” is more than just a new CD soundtrack from a hit movie. It’s also a harbinger of things to come--an indication that technology may soon trump the law and change the way consumers listen to music, watch movies and read books.

The ordinary-looking disc of heart-pounding music works just like any other CD in a home stereo or boom box. Put it in the slot, it plays. And while it plays, it can be recorded on tape.

But the disc also has hidden electronic locks that go to work when it’s placed in a computer. Most PCs come equipped with jukebox programs that can copy CDs as well as play them, eliminating the need for tape recorders. The locks on “More Fast and Furious” are designed to confound those programs, keeping the PC from copying the disc and, in some cases, even playing it.

The goal of the new CD technology is to turn back the clock on digital recording, which the record companies say is fueling piracy and hurting sales. The software restricts copying to time-consuming analog recorders instead of speedy digital tools that make perfect duplicates.

For years, critics have warned that movie studios, publishers and record labels would someday use digitized media to enforce restrictions that the courts refuse to impose, limiting what consumers could do with film, print and music.

“More Fast and Furious,” from Universal Music Group, the world’s largest record company, underscores how near that day is.

Publishers already sell electronic books with technology that prevents buyers from lending the text to a friend or copying excerpts for a school paper. And record companies have introduced digital song files that can only be played on the computer that downloaded them.

Eventually, intellectual property activists say, such technology could make it impossible to present a digital movie as a gift because the movie would play only on the machine owned by the person who paid for the item. Likewise, television shows would be broadcast in formats that prevented them from being recorded.

“The copyright holders want to sell you something but still get to control what you do with it,” said Cindy Cohn, legal director of the Electronic Frontier Foundation, which battles for civil rights in cyberspace. “If they’re allowed to do that, if we throw the traditional interpretation of intellectual property protection out the window, there will come a time when our entire culture will be rented to us by the hour, or the day, or whatever the copyright owner decides.”

Entertainment industry executives say the new technologies are needed to prevent the world from being flooded with pirate copies of their most popular works. The technologies are also critical to protecting established business models, such as the movie industry’s staggered releases to theaters, video stores, cable TV and broadcasters.

Digital Era Makes Piracy Much Easier

“Unless you recover your costs, there’s no way you can make a new motion picture,” said Jared Jussim, executive vice president in the intellectual property department of Sony Pictures Entertainment Inc. “It’s as simple as that.”

The debate itself is not new. There has always been tension between those who produce copyrighted works and those who use them. The holders of music copyrights fought the advent of the player piano. Movie studios went to court against video cassette recorders.

But the digital era makes wholesale piracy much easier. Perfect copies can be duplicated quickly and distributed widely with relatively simple tools. At the same time, producers of copyrighted works can use digital technology to truly control how their content is used.

Some scholars and lawmakers argue that measures like Universal’s copy-protected CD go too far. What distinguishes “More Fast and Furious” is that it represents the first commercial release in the U.S. of a copy-protected CD by a major record label. Previously secure CDs have been released in the U.S. by major labels on a test basis only.

“I think this is uncalled for and unnecessary as a means of protecting legitimate copyright interests,” said Rep. Rick Boucher (D-Va).

He predicted that Congress would be forced to take action. “When millions of Americans are frustrated in their desire to do something that’s entirely lawful, normally members of Congress hear about it,” he said.

In a sense, Universal’s music division is just following the lead of its movie studio brethren. Movies on DVD have always been protected by electronic locks, and prerecorded VHS tapes have long come equipped with anti-copying technology.

On the other hand, music fans have been making copies of albums and singles for decades, and CDs and computers have made the process easier than ever.

Millions of consumers use their computers to convert the songs on their CDs into compressed digital files, such as MP3s, that can be played in any order, transferred to a pocket-sized portable device or mixed and rerecorded onto custom CDs.

The problem for record companies is that many consumers have been copying more than just their own CDs. Free file-sharing services from the likes of Napster Inc., which let any user grab MP3 files from other users’ computers, showed that the new digital copying tools facilitated piracy on an unprecedented scale.

Federal law gives copyright owners the exclusive right to copy and publicly perform their works, but it also allows the public to make “fair use” of those works. Copyright was designed to give people an economic incentive to create new works, but the courts recognized that absolute copyright is a kind of monopoly on information.

Citing the 1st Amendment, judges carved out the first “fair-use” exemptions so copyright holders could not, for example, keep a newspaper from quoting a sentence in a book, said Pamela Samuelson, a law professor at UC Berkeley.

The U.S. Supreme Court relied on the fair-use doctrine in 1984 when it said consumers weren’t breaking the law by taping television programs on their VCRs. Other types of home copying, such as making a tape for the car stereo from a purchased CD or copying songs to an MP3 player, have received similar protection from the legal system.

Balancing Fair Use, Copyright Protection

Some lawmakers and copyright holders say “fair use” should be implemented in a new way now that digital technologies have transformed copying.

With VCRs and other analog recorders, “there was still a major cost to the consumer to violate the copyright laws beyond mere fair use,” Rep. Robert Goodlatte (R-Va.) said in an interview earlier this year. But digital technologies and the Internet eliminate the cost of piracy, upsetting the balance between allowing fair use and protecting copyrights.

Cary Sherman, general counsel for the Recording Industry Assn. of America, said copyright law doesn’t give consumers carte blanche to make copies of the music they buy for personal use, although it is hard to say what the limit on personal copies should be.

“Companies are modifying their licensing practices to try to achieve some balance” between protection and personal-use copying, Sherman said. “But ultimately, it’s the copyright owner’s choice.”

But Rep. Boucher disagreed, saying that is exactly what the law prohibits. Fair use is not an option to be restricted at the copyright holder’s whim, he said, but protected activity sheltered by a century of judicial oversight.

Lawrence Lessig, a law professor at Stanford University and an expert on technology and intellectual property, went further, saying: “Copyright law was designed to give copyright owners an extremely limited set of rights that could only be exercised for a limited time. And it certainly wasn’t designed to let copyright owners get to control perfectly how their stuff gets used.”

Copyright holders are using technology not just to rein in fair use, but also to evade the “first-sale” doctrine. That principle, which is part of federal copyright law, gives anyone who buys a copyrighted work the freedom to give away, lend, rent or sell it.

For example, those who buy an electronic book can’t transfer or sell the file after they’re done reading it. The same is true for a CD single downloaded from an online record store, or a movie file downloaded from an Internet video supplier.

These items often cost just as much as their paper or plastic counterparts. Publishers, record companies and Hollywood studios counter that they are not selling their works but merely selling a license to read or play them. And “first sale,” they say, doesn’t apply to a license.

“More Fast and Furious” comes with a sticker warning consumers that the disc is copy-protected and may not play on some computers, DVD players and game consoles. Consumers with Windows PCs can still make analog copies of the songs on their computers, but the process takes more time and delivers poorer quality than digital copying.

Issue Seen as Deeper Than Copying Music

Some music industry analysts and others predict a consumer backlash if record companies make a wholesale switch to secure CDs. The companies supplying copy-protection technology, however, say that they’ve done tests with millions of unmarked secure CDs and that consumers returned only a tiny percentage of them.

Samuelson warned, though, that the issue goes deeper than just copying music.

“Copyright exists to promote progress, not to create an absolute monopoly on intellectual property,” she said. “Eliminating concepts like fair use through technology destroys this zone that lets us make private use of information, damaging critical commentary, political activism and journalism.”