Woman Sues Over Copy-Protected CDs

By Richard Menta- 9/08/01

Over the last couple of months we have read about how the record companies are releasing copy protected CD's designed to block users from listening to them on their computers. These "stealth CDs" are not only designed to protect copyrights, they are designed to eliminate what we now practice as "Fair Use" a term coined by the Supreme Court that allows users to freely copy music and other copyright works onto other formats for more convenient personal viewing and listening.

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Because it stands to make them more money, the record companies are attempting to strip consumers of their fair use rights, using copyright protection as a cloak. If they have their way, consumers will no longer own the records they buy, they will only be renting it subject to the terms dictated by the record oligopoly. These terms include not only crippling the CD, but forcing users to give up personal information in return for additional liberties, in other words giving you back some of the rights they stole from you.

But if Big Music wants to put copy protects on the CDs they peddle, how can anyone stop them?

The answer is simple, mass buyer rejection of CDs enabled with this technology. To do that, we first have to force the industry to properly label those CDs with copy protection so we can avoid them like the plague when it is time to make our purchases. That is what one California woman named Karen DeLise is doing. She has filed a lawsuit against Fahrenheit Entertainment, an independent record label, for embedding this technology on their CDs.

The lawsuit, entitled DeLise v. Fahrenheit Entertainment, Inc. et al, alleges that by failing to provide an adequate - the key word here is adequate - identification of those CDs encoded with copyright-protection, the small label misled consumers. The suit also names the creator of the copy protection, Sunncomm inc.

"The law requires companies who are selling products to give the consumer material information that is relevant to making decisions about whether to buy the product or not, and Fahrenheit did not do that," Ira Rothken, the attorney who filed the suit, said Friday.

The CD in question here, Charley Pride's A Tribute to Jim Reeves, actually can play on a computer, but only after the user has registered their name and address on a Web site designed to narrow down the "suspects" should this music appear for trade on the various Napster clones. This, the suit claims, raises privacy issues and it does.

The CD does have a disclaimer on it already. It reads "This audio CD is protected by SunnComm MediaCloQ Ver 1.0. It is designed to play in standard audio CD players only and is not intended for use in DVD players. Licensed copies of all music on this CD are available for downloading. Simply insert CD into your computer to begin."

What is left out of this disclaimer is any mention of the inability to play the CD on a computer without registering on the Web and the inability to transfer songs onto portable MP3 devices.

"Fahrenheit has statements on its CD case which do not address these issues," Rothken said. "The omissions are also unfair business practices."

In our opinion these copy-protected CDs only serve to devalue the product in the eyes of consumers who already have developed a keen distrust of the record industry in the wake of the Napster trial. An angry consumer can be a very onerous opponent because they hold the ultimate power, keeping their wallets closed. Of course they have to be aware of what is going on and that is what makes Karen DeLise's lawsuit important as this case serves to shine a spotlight on another dubious record industry practice.

These crippled CD's have already invaded the European market with millions on the shelves. They will do the same here soon unless we stop it by immediately rejecting those albums using the technology. Lawsuits are but one way.

Our advice, If you get a CD that doesn't play on your computer, return it as defective. Then the next time you make a purchase, look out for any stickers suggesting copyright protection. If you see one, place the CD back on the rack and buy another title.

Of course, consumers are still going to want the music they just put back. What are they going to do if it is music they really want? Probably open up a Napster clone and download a copy from someone who figured out how to beat the CD's technology.

Such action would defeat the entire reason the record companies created the technology in the first place, a technology that frankly gives shoppers MORE incentive to download, not less. As we said, technology restricted CDs devalue the product and an angry consumer can be a very onerous opponent.

The full complaint is online here.

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How the Supreme Court may save Napster


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