Ol' felt pen can thwart CD-piracy safeguard

Simple, felt markers thwart copy-protection safeguard

May 23, 2002|By MIKE HIMOWITZ

If you have any felt-tipped markers in your home or office, you'd better think twice about keeping them - they could get you booked on a federal felony rap.

It seems that these low-tech writing implements are actually tools that can crack the high-tech copy protection schemes that some music companies have adopted for their CDs.

As a result, the possession or sale of felt-tips could violate the Digital Millennium Copyright Act, which may not be the worst law that Congress passed during the 20th century, but certainly comes close.

For those who may not be familiar with this piece of one-sided, special-interest legislation, the DMCA slithered out under the doors of the Capitol back in 1998, when the country was too busy obsessing over the Clinton-Lewinsky soap opera to notice that a deep-pocketed entertainment industry had managed to flummox the committees who write the the arcane language governing intellectual property in this country.

Basically, the DMCA makes it illegal to circumvent copy protection schemes that publishers may place on their digital media, such as music, movies and electronic documents. The law also makes it illegal to sell or possess a program or device that can circumvent copy protection. The maximum penalty: a $500,000 fine and a five-year jail sentence for the first offense. Not to mention the civil penalties.

Now you may not think this is such a bad thing. It's no secret that "ripping" a copyrighted track from a CD album and posting it for other people to download with Kazaa, Grokster or some other Internet file-sharing program is illegal. That's because the people who download it haven't paid for the right to listen to that music. The same goes for making copies of CDs and selling them, or even giving them away.

But under existing law, you do have a perfect right to put that disc into your computer's CD-ROM drive and play it. You can also give or lend the CD to a friend, or sell it outright.

You can also turn a CD audio track into a digital MP3 music file and play it directly from your computer's hard drive, or transfer it to a digital music player and listen to it while you go jogging. In fact, almost any reasonable copying for your individual, non-commercial use is permissible. This principle not only makes sense, it's eminently fair, so much so that it's known in legal circles as "Fair Use."

Entertainment companies hate it. Their fantasy is a world where music is locked up behind technical and legal barriers that no one can crack without risk of a jail sentence, a world where music can be played on only one device, registered to a particular user - a user who pays each time he or she listens to the song.

That sounds pretty harsh, but the DMCA gives the entertainment industry almost everything it wants. Oh, you still have the right under Fair Use to make copies, or listen to the music on the player of your choice. But if you use a device or program to exercise that right on a copy-protected disc, you can go to jail.

The Supreme Court hasn't ruled on this conflict, but so far, lower courts have said it's perfectly OK for Congress to take away with one hand what it gives with another. In the most recent case, involving a Russian company whose software can copy encrypted Adobe Acrobat documents, Judge Ronald Whyte of the U.S. District Court in San Jose, Calif., ruled that the DMCA prohibits all tools that circumvent technical copy protection schemes.

Which brings us to the issue of felt-tipped pens. For the better part of a year now, music publishers have been trying to slipstream copy-protected CDs into the marketplace.

These are supposed to work in regular CD players, but they contain error tracks that make them unplayable on the CD-ROM drives in computers. That means they won't play even if the owner merely wants to listen to the music and has no intention of copying it.

Millions of people - most of whom have never copied anything - routinely use their computers as CD players because it's convenient. But music publishers are happy to tell those folks to get lost - they'd rather prevent a song from being copied than allow someone who buys it to play it legitimately on a PC. And anyone who develops a scheme or uses a program that allows protected discs to be played on a computer - even without intent to copy - is a felon under the DMCA.

Back to felt-tipped pens. It seems that "hackers" in Europe (where most copy-protected CDs have been released so far) figured out that Sony's latest high-tech CD protection scheme can be circumvented by running a felt-tipped pen around the outer edge of the CD - where the bogus error track is written.

The Reuter news service confirmed this with its own experiment, making a copy-protected disc play in a computer and thereby risking the full wrath of the law.

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