"There might be consumer expectations here, but there is no legal right."
July 20, 2001 9:08 AM   Subscribe

"There might be consumer expectations here, but there is no legal right." For the last several months, music consumers around the world have unwittingly been buying CDs that include technology designed to discourage them from making copies on their PCs. The technology inserts audible clicks and pops into music files that are copied from a CD onto a PC. According to Macrovision, the company that has provided the technology to several major music labels. (I want to say "Fuck the music industry," but that would be rude.)
posted by tranquileye (48 comments total)
don't worry tranquileye, I'll do it:

Fuck the music industry

...much better
posted by thewittyname at 9:18 AM on July 20, 2001

Rather than blocking copying altogether, the technology
introduces some digital distortion into a file. Macrovision says this is all but inaudible when a CD is played through an ordinary CD player

What does "all but inaudible mean" does it mean that people with crappy stereo systems wont hear it, but people with audiophile systems will?
posted by milnak at 9:19 AM on July 20, 2001

I think it means you can hear it. God, the music indsutry sucks.
posted by tranquileye at 9:24 AM on July 20, 2001

Why is all of this anti fair use crappola showing up at the same time? First, we had the movie industry and their RCE scheme, then we have Adobe, and now we've got macrovision and the music industry...
posted by Kikkoman at 9:27 AM on July 20, 2001

And then there's Window's XP. Just goes to show the average consumer can't be trusted.
posted by samsara at 9:36 AM on July 20, 2001

If they put clicks and pops in the music, someone can write some software to take them out. But if I was an artist, I'd be pissed at the music companies for messing with the music. No matter how "all but inaudible" the distortion is.
posted by pb at 9:36 AM on July 20, 2001

Here are my frequent listen/buying habits:

- grab some mp3s that interest me based on title or person that has them, via some sort of free means

- buy CDs from new artists found via mp3s

- come home and rip entire CD, so I can listen to them on my computer, put the CD in my car to listen to while driving.

It works fine until something like this pops up. For the life of me, I couldn't rip the last Kool Keith record I bought a few months back, and I couldn't figure out why.
posted by mathowie at 9:39 AM on July 20, 2001

You guys think this is bad?

Wait until Monsanto really starts kicking ass and you have to start worrying about COPYRIGHTED PLANTS!

Just think "vegetable copyright management." Coming soon to a potato plant near you...
posted by preguicoso at 9:53 AM on July 20, 2001

milnak: What does "all but inaudible mean" does it mean that people with crappy stereo systems wont hear it, but people with audiophile systems will?

From what I've read, it works by putting some ridiculous samples in the data stream that are completely illogical and messing up the error-correcting codes. Apparently, an audio CD player will ignore this spurious sample and interpolate between the good samples, but a data CD player will realize that the error-correction and reality are all out of whack and refuse to copy it. If it's copied whole-sale without checking error correction and such, then the spurious samples remain in, and their values don't get interpolated from the neighboring samples like the audio players do. This shows up in the signal as a very sharp transition in amplitude, which is gonna make your tweeters rush out to the ends of their range of motion to try and suddenly generate that amplitude change and in doing so, they will make a click.

In short, if that interpolation bit is true, then yes, there is some slight change to the music even on a normal cd player, but if it really is only one bad sample and it's interpolated, it probably isn't noticeable, even on the most ridiculous Mark Levinson cd player.
posted by jeb at 9:55 AM on July 20, 2001

hmmm... this is a bit like thieves complaining when people lock their front doors! How dare record companies try to stop people stealing from them!
posted by MarkC at 9:59 AM on July 20, 2001

> How dare record companies try to stop people stealing
> from them!

If it's audible on the original CD, it damages legitimate buyers just to stop copiers. Is it OK to protect your front door by spreading broken glass on the sidewalk, in case some of the pedestrians might be housebreakers?
posted by jfuller at 10:05 AM on July 20, 2001

The solution, of course, is to only buy analog!
posted by ry at 10:15 AM on July 20, 2001

analog yeah! it has the clicks and pops anyway. ;)
posted by pb at 10:18 AM on July 20, 2001

People have a right to make a copy of a CD they have bought. The record industry is preventing people from exercising this right.
posted by Outlawyr at 10:20 AM on July 20, 2001

One other big consideration - this affects data CD drives, which aren't just in computers. A lot of high-end audio systems, particularly in cars, use the better quality data drives. Ironically, this may mean that a CD wouldn't play in your new car but would play in a cheap $50 discman knock-off.

There are other problems for this, too - I listen to CDs almost exclusively on my computer (which has a high-end speaker setup) or Powerbook. If either one doesn't work, I'll return the CD as not-fit-for-purpose.
posted by adamsc at 10:30 AM on July 20, 2001

People have a right to make a copy of a CD they have bought. The record industry is preventing people from exercising this right.

Is this true? Do people actually enjoy some specified right to copy audio CD information in an unaltered state onto their hard drives? Because then people would have a legal recourse against the companies manufacturing these CDs.

My guess is that this practice skirts, but does not cross over the line of allowing fair use. (Outlawyr - is my guess simply wrong?) Does anyone here know the law better than I do, which is to say, better than anecdotally, and willing to explain? :)
posted by massless at 10:40 AM on July 20, 2001

i'm not sure how much more successful macrovision's venture in the CD business will be than its video enterprise. macrovisioned videos mess up copies of tapes that are equipped with their copy protection, but they also cause noticeable signal degradation that annoyed many people. whether due to that annoyance, or perhaps as a courtesy to its consumers, i don't believe there are many videos for sale today which use macrovision's copy protection.

this, however, is in a somewhat different league. it may be, though, that on those higher end cd players, people will be unable to play CDs and in turn sufficiently annoyed enough to let the riaa have at it. i hope that will be the case, and we can all skip this flawed form of copy protection.
posted by moz at 10:58 AM on July 20, 2001

People don't have the right to make copies for personal use, but it is legal.

This is no different than videotapes, which in spite of scare tactic FBI warning screens are legal to copy for personal use but which have signals embedded which make copies look like crap. Macrovision it's called, and you'll notice that's the company behind this latest attempt to copy-protect CD's.
posted by brantstrand at 11:01 AM on July 20, 2001

Look at 17 U.S.C. § 1008:

Section 1008. Prohibition on certain infringement actions

No action may be brought under this title alleging infringement
of copyright based on the manufacture, importation, or distribution
of a digital audio recording device, a digital audio recording
medium, an analog recording device, or an analog recording medium,
or based on the noncommercial use by a consumer of such a device or
medium for making digital musical recordings or analog musical

Also look at Sony v. Universal City Studios, 464 U.S. 417 (1984).
In Sony v. Universal, this type of copying was called “timeshifting.” Id. at 418. Timeshifting refers to the consumer’s right to record a copyrighted program for later viewing when the consumer cannot watch the original broadcast. Id.
posted by Outlawyr at 11:04 AM on July 20, 2001

Another solution is to focus your music collection to artists such as Oval and Pan Sonic and Pole - the inserted clicks and pops would probably be indistinguishable from the source material, and you could auction off the tracks as hard-to-find remixes for some supplemental income.

Now I'm wondering if anyone has created a song around the aural glitches that appear in poorly encoded MP3s.
posted by jga at 11:05 AM on July 20, 2001

You have a right to copy in fair use; you don't have a right to receive high fidelity.
posted by ParisParamus at 11:08 AM on July 20, 2001

massless: Curious, how many people really copy a CD as is to their computers? Me, all of my recordings are at 128Kbps. That's not CD quality. Audibly different? Not to my ears, but they are different. Lots of people are fine with cassettes, too.

I did a little poking around the web, and all I could find is that no one is really quite sure if copying a CD for personal use is legal or not. The RIAA says no, of course. Fair use laws in this case seem to be cloudy, but that might've just been spurred on by the RIAA. FUD, y'know.

The question then is, if it's illegal to archive a CD I've purchased, what am I actually purchasing for that $13?
posted by hijinx at 11:09 AM on July 20, 2001

moz: I'm confused. I was under impression that Macrovision technology was on the rise, given that section 1201(k) of the DMCA (copyright office summary, see page 4) states that all analog VCRs sold in the US must incorporate the technology. Maybe this is Yet Another case of law being out of step with reality, mandating a flawed and derelict remedy to an imagined problem.
posted by Vetinari at 11:12 AM on July 20, 2001

I actually think this is sort of brilliant, if annoying. (and I'm another one who listens to CDs exclusively on my computer.)

it would be like treating paper so that if you photocopied it, it would be barely legible. as paris points out, it is legal to copy for fair use, but there's no right ot high fidelity.

now, if you could buy a CD and then have a license to copy that music from the record company to your PC, this would be no problem at all, eh?

in any case, it's a simple matter of market forces, I think. if enough people return these CDs, the record companies won't persist in this - it will mean fewer sales for them.

(and I wonder what this introduced noise sounds like: LPs have lots of pops and crackles, I could easily ignore that; it's all part of the experience.)
posted by rebeccablood at 11:29 AM on July 20, 2001

massless: Is it legal to make a mix tape?
Yes it is, and the only reason I rip my CDs is so I can make compilations for my car stereo while I'm on my 45 minute commute.
posted by tj at 11:36 AM on July 20, 2001

The really stupid thing is, this only hurts the average consumer, as you can easily just MP3 the audio output by plugging your CD player into the line in jack on your computer.

I usually make my MP3s this way, because it I like trance music that often doesn't have convenient track breaks, and it also lets me add spatial processing with my sound card.
posted by dong_resin at 11:54 AM on July 20, 2001

Actually this was used on the new Weezer album (listen to it you can here the pops on island in the sun MP3)
A good audio program like sound forge can unscrub these samples for ya
posted by crackheadmatt at 12:03 PM on July 20, 2001

I could see record companies selling two versions of CDs: one with the copy protection installed, and another that didn't. Record companies could charge more for the non copyright-protected one, since they are actually selling you the liscence to make a high fidelity copy. It would fit perfectly in the RIAA's justification of CD prices (Notice no reference to making a digital copy in the first paragraph).
posted by ry at 12:13 PM on July 20, 2001

I just got a new Built to Spill album (released on, unfortunately, Warner Bros) and it won't play on my computer's CD-R drive. Not just unrippable, unplayable. The audio cuts out every few seconds, kind of like a skip, but longer and more noticeable. It plays fine on my crappy discman though. Hmmm... I was wondering what was up with that, and it looks like this may be the answer
posted by shinji_ikari at 12:52 PM on July 20, 2001

I've got some CDs that won't even stay in my Mac's DVD-ROM drive. Put 'em in, the computer spits 'em right back out again. They play fine in all my audio CD players, though. Two specific ones I've had this problem with are Mark Knopfler's Sailing to Philadelphia and the Flaming Lips' The Soft Bulletin.
posted by kindall at 1:00 PM on July 20, 2001

if I was an artist, I'd be pissed at the music companies for messing with the music.

The only people record labels care less about pissing off than consumers are the artists.
posted by jpoulos at 1:12 PM on July 20, 2001

well, you know, someone ought to make a list of CDs that have been identified with this technology; a website with user submissions tha include a description of what happens; and then consumers could avoid them.
posted by rebeccablood at 1:33 PM on July 20, 2001

On the fair use angle:

According to a FBI friend as long as you're not selling the copied CD they don't care what you do with it.
posted by ooklah at 2:36 PM on July 20, 2001

I think that in some cases, problems with Audio CD's playing poorly in Computer CD-ROM drives has nothing to do with copyright protection. I've had several CD's over the years that would refuse to play in computers, even back to the early days of the medium. Personally, I think that a lot of those problems were caused by crappy CD-ROM drives in various computers, but there are other variables.

This is a little disturbing though, especially when it comes to a format like minidisc, where there is little to no support from the record companies and some models allow you to rip them through your computer.
posted by the bob at 2:36 PM on July 20, 2001

Built to Spill played just fine on my workplace PC... Doug would never stand for those kind of hijinks!!!
posted by ph00dz at 3:05 PM on July 20, 2001

According to a FBI friend as long as you're not selling the copied CD they don't care what you do with it.

This is how they should behave, logically, but they don't. No one was selling anything over Napster, for example. But the idea of sharing music, as it could potentially replace or reduce the practice of buying music, is itself scary to the RIAA.

What is it that is copyrighted on a CD? If it's the music itself, and not the physical recording (the CD), shouldn't I be able to copy it to a different medium if I so desire? And if it's the physical recording, how can they claim that me downloading mp3s of the album is somehow stealing, since I never even came near the CD in the first place?

Copyright law and digital copying are profoundly incompatible.
posted by D at 3:44 PM on July 20, 2001

well, you know, someone ought to make a list of CDs...then consumers could avoid them

Depends on which costs the record companies more. Do they absorb a financial penalty for returned CDs? If so then I'd rather encourage everybody to go out and buy all of these CDs then return them as defective. In fact as long as costs are passed back to the labels (and I'm not sure they are) buy them from several stores and return them as defective.

Might make for a good protest.
posted by willnot at 4:19 PM on July 20, 2001

What others have said here is true. We don't have a legal right to make a backup, but we are immune from claim of infringement (Title 17, Section 1008 (quoted above)) if we do.

Regarding this very issue, I wrote this in my blog two days ago: Remember what happened to all of humanity in the Matrix? Well, the entertainment cartel is the machine and your life force is concentrated squarely in your wallet. It's time to take the red pill, Neo.
posted by fooljay at 5:26 PM on July 20, 2001

"As long as you're not selling the copied CD they don't care what you do with it."

Then why all the fuss about p2p? I'm not making money when I file-share.
posted by raedyn at 7:04 PM on July 20, 2001

What is it that is copyrighted on a CD? If it's the music itself, and not the physical recording (the CD), shouldn't I be able to copy it to a different medium if I so desire?

Copyright means what it says - the right to copy. The copyright holder of any expression of ideas (words, music, pictures, etc.) has the right to state how and when others may make copies of their creations. The only "loophole" in this comes under the legal doctrine of "fair use" which allows copying of works you have already been allowed to posses for personal use (if the copyright holder says you can have one copy, you can make as many copies as you want as long as you keep those copies to yourself. If you buy the sheet music for "Happy Birthday" you may play it for your friends and family, but you cannot play it in public unless you specifically arrange for public performance rights). You may also make copies of portions of any creative work for the purpose of criticism (It's OK to say you love Radiohead's new album and quote a few lines from a song or two to defend your position, but it's wrong to publish all the lyrics and guitar tablature(sp?) to a song).

Artists generally maintain copyright on the material they create, while record labels maintain copyright to specific performances of the artist's work. Under fair use (which is a legal doctrine based on precedence rather than specific legislation) you are free to copy anything to a different medium as long as it is for your own personal use. Clearly, Napster and other file-sharing services go a bit beyond this (you're not making copies for your own use, your making copies for others to use).

However, if you purchase a recording from a record company, you are purchasing a recording of a specific performance. If you make a copy this performance for personal use, a reasonable person might expect that such a copy should be of the same quality as the performance you purchased. True, there is no legal right (in the U.S.) to anything that is not specifically mentioned in the Constitution. But if someone who purchased one of these CD's were to sue, it the results would go a long way to clarifying Fair Use in the digital age in terms of tort law.
posted by dchase at 7:53 PM on July 20, 2001

Artists generally maintain copyright on the material they create...

As I understand it, these publishing rights are commonly sold to other corporations. I would appreciate any clarification of this issue; I'm in over my head here.

But if someone who purchased one of these CD's were to sue, it the results would go a long way to clarifying Fair Use in the digital age in terms of tort law.

Agreed... where are our eccentric millionaires when you need them?
posted by D at 12:11 AM on July 21, 2001

It does get pretty confusing. In most contracts, publishing rights are sold to others, usually in exchange for regular royalties as opposed to a lump-sum payment. Michael Jackson (I believe) owns the publishing rights to the Beatles catalogue. You want to play a Beatles tune you end up paying the King of Pop (if you're a radio station or a performer, you generally pay a blanket fee for a standard performance license to ASCAP and/or BMI who then go about the process of divvying up the money among the appropriate publishers based on the info you gave them. If you're Nike and you want to use Revolution in an ad, you negotiate with and pay Mike directly). Michael probably sends checks to Paul and Yoko on a regular basis based on how often their music was used.
posted by dchase at 8:13 AM on July 21, 2001

In most contracts, publishing rights are sold to others, usually in exchange for regular royalties as opposed to a lump-sum payment.

I would think that that's backwards. You can either retain the rights and get royalties (administered by your publishing company/ASCAP/BMI/whatever), or you can sell the rights for a one-time, lump sum payment. My guess is that John and Paul got a *lot* of money at one point, and now Michael gets steady bank while Paul and Yoko get nothing.

Anyone know for sure?
posted by rodii at 11:20 AM on July 21, 2001

I think the reason the beatles formed apple is because they'd been so badly screwed by their former record company.

I thought that paul was the only one to come out of that contract well, since linda's brother (a lawyer) had been managing his finances.

wait! it sounds like I'm getting it all mixed up. this may be that other chesnut of the record industry: the manager screwing the artist.
posted by rebeccablood at 12:00 PM on July 21, 2001

Regular music industry practice:
Record Company gives Artist advance to record album. Artist records album, delivers it to Record Company, who then own copyright to album for however long.

You might almost concede this as a fair deal, except for this catch: the Artist is expected to recoup the advance before they can start collecting mechanical royalties, (ie for the recording, not the song as a written work), but the Artist doesn't get the copyright for the album once they've paid off what is effectively a loan. Some people might call this theft or suchlike, no doubt the RIAA have a different term for it.

Most musicians get ripped off because they're first and foremost musicians, not lawyers or businessmen. If they're lucky they'll have landed a shrewd manager who knows all the tricks, is on their side, and actually cares about music.
posted by Graham at 9:25 AM on July 22, 2001

Or they'll sign with a record label that believes the artists should own their own music.
posted by kindall at 10:10 AM on July 22, 2001

"Reports so far have turned up no significantly higher number of CD returns or consumer complaints, a spokeswoman said." Well, I take that as a personal challenge. I like Rebecca's idea of starting a list; we as consumers should have a right to know before we buy (I realize that legally we don't, but we should!).

I'm a critical listener, and I'm concerned that this will be audible. In this article on Stereophile, Macrovision only says that "the SafeAudio solution meets the combined objectives of playability (where the original audio content can be heard with no discernable reduction in audio quality) and effectiveness (where a satisfactory level of copy protection is provided)." That doesn't provide a lot of comfort.

I joined BMG on one of their promotional specials because I buy a lot of CDs, and just as quickly discontinued my membership because the quality wasn't as good as the original release. Found out later that's because the mastering speed is 10-12X what they use on the record labels' production runs, translating to lost data.

The record companies are so concerned about copying that they're sucking all the joy out of owning and playing recorded music.

I used to tape coins to the tonearm of my Motorola turntable to get the best sound out of my LPs. When I later went to a high-quality turntable tracking at 1/2 gram, my LPs were thrashed. So I went out and got a Nakamichi cassette deck and blank metal tape, and started making copies of every new LP I bought. Then I only played the tapes. When I wanted a compilation tape, I went tape-to-tape. The end result is I now have over 1,000 LPs, each of which has been played only once or twice in its life. They're priceless to me. And the metal tapes still sound great, even ones I made 20 years ago. But that's not the point. The point is the hundreds and hundreds of hours of FUN I had playing the music, and playing with the music, making car-tapes and date-tapes and party-tapes and dance-tapes and studying-tapes. Making it mine.

I realize that, properly cared for, a CD can last for many years, and this kind of archival recording isn't technically necessary any more. But dammit, ripping CDs and making my own car-CDs and party-CDs, taking my music with me wherever I go, listening to it the way I want to listen to it, are all integral parts of the experience of buying recorded music for me. And they're taking that away.

So I can switch for awhile to digital-to-analog and go back to my cassette tapes, or run the songs directly into MP3 as dong suggests, but that's not a solution. Rendering digital media back into analog is just stupid. MP3's are suitable only for background music, or - maybe - in the car, at least for me. I'm going to go buy and return some CDs tomorrow...
posted by JParker at 11:50 PM on July 22, 2001

HEY, WAIT A MINUTE.... if "Reports so far have turned up no significantly higher number of CD returns or consumer complaints", doesn't that mean there aren't many people tryng to rip the CDs anyway? So the point of this copy-protection bruhaha is ...?
posted by JParker at 12:12 AM on July 23, 2001

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