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Is CD Copy Protection Illegal?
ribbiting writes "US Rep. Rick Boucher, D-Va. is asking RIAA execs to explain how they can collect royalties on various blank media at the same time that the RIAA members are implementing copy protection mechanisms, with particular reference to the Audio Home Recording Act (AHRA) of 1992."
Glad someone is asking the question.
It's not a tax, it's a "levy." :) But the RIAA doesn't really have anything to do with that in Canada. The money goes to Canadian artists, based on record sales, which is the part that bugs me. They could give all this cash (22c/disc, currently) to promote up-and-coming bands, but it's all going to Celine Dion and Bryan Adams. GenericGarageBand doesn't see a dime. Not to mention every time you download and burn *BSD (Linux/Solaris/whatever), you're giving money to the music industry.
"If he thinks he can hide and run from the United States and our allies, he's sorely mistaken." Bush on bin Laden
The main thrusts of the law are:
-No copyright infringment suit can be brought against someone making home digital recordings.
-Retailers have the right to sell copying equipment and media, so long as they contain serial copy protection.
-The RIAA collects a royalty of 2% on copying equipment and 3% on media.
That the RIAA might be violating this law by making copy-proof cds is not immediately apparent from a quick reading. In fact, the definitions of what is and is not a "digital musical recording" do not seem to hinge in any way on the "copyability" of the recording, and the only qualification for entitlement to payments is that an entity is making and distributing recordings so defined.
The point that copy-proof cds violate the spirit of this law is a good one. I think that any argument that the letter of the law is violated is weak, however. Anyone who can determine otherwise would make me happy, though, since IANAL.
As a final point, the fact that a congressman is looking into this might make violation of the letter of the law irrelevant since congress, of course, has the power to create new law.
Doesn't look like there is actually anything in the Audio Home Recording Act that says that the RIAA members can't do what they are doing. (Moral considerations aside.) Apparently, the drafters of the Act back in 1992 didn't think that there would ever be enough copy protection to worry about. Of course, that's why the Act was passed-- the recording industry was all whipped up about the revenue it was going to loose as a result of people making digital copies.
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Here's the text of the Audio Home Recording Act.
http://www4.law.cornell.edu/uscode/17/ch10.html
(Arranged in easy to navigate sections from Cornell Law School)
http://www.hrrc.org/html/ahra.html
(Full text on one page from Audio Home Recording Rights Coalition)
Subchapter C is the part that is particularly interesting in that it sets out the details on royalty payments. You will have to cross reference to the definitions section is Subchapter A, however, in order to fully understand who is entitled to collect payments. Love the method of splitting up the royalty payments!
Finally someone is paying attention to this issue. I've posted this information in a couple of slashdot threads, and here it is again. It's one of the most incredible recording industry lies/ripoffs. Maybe now it will get some attention.
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The upshot of it is that every time you purchase a digital audio recorder, or blank digital audio recording media, such as audio CDRs, you pay a small statutory royalty into a fund. This fund is collected by the Federal Government, and turned over directly to the music industry. The name of the fund is the DART fund. DART stands for "Digital Audio Recording Technology". The best source of information on the DART fund is right here
These documents are very interesting. They show how the money was paid out. The law was written to allow all of the major copyright interests to gather together and collect all the money in one lump sum. According to the first report on the page, we find that 99.997% (LITERALLY!) of all of the statutory royalties collected on blank digital audio media (mostly CDRs), and digital audio recording devices went to the following organizations:
Broadcast Music, Inc. (``BMI'');
the American Society of Composers, Authors and Publishers (``ASCAP'');
SESAC, Inc. (``SESAC'');
the Harry Fox Agency (``HFA'');
the Songwriters Guild of America (``SGA'');
and Copyright Management, Inc. (``CMI'')
Copyright Management, Inc. is a blanket organization that represents all of the major record labels.
In other words, all of the people who are raising hell that they aren't being paid when people burn music onto CDRs are being
you got it
paid every time a blank CDR is purchased!
However, nowhere in any of these web pages will you find the actual dollar figures. The reports go to laughable extremes to avoid disclosing exactly how much money we are talking about. For instance, according to the report, for the 1995 funds collected, 99.998034% was paid to the music industry, 0.001966% was paid to one individual claimant, and 0.000614% was paid to Ms. Alicia Evelyn.
I obtained the actual royalty yearly figures by contacting Ms. Evelyn, one of the individual claimants. Ms. Evelyn is a songwriter who, unable to obtain any royalty payments from ASCAP for her work, petitioned the copyright office directly for payment. She read me these numbers over the phone which she received in the course of her research. If you do the math, you'll find that she received a few pennies for her efforts. Literally.
Here are the total amounts collected year by year since 1992. These statutory royalties were all paid out to the recording industry:
1992 $118,227.42
1993 $520,162.84
1994 $521,999.64
1995 $473,592.20
1996 $397,152.52
1997 $969,178.06
1998 $1,978,457.93
1999 $3,551,030.86
2000 $5,285,246.32
So, while on the one hand, the music industry is claiming that they are not being paid when individuals make audio CDRs of their music, yet on the other hand, they are quietly collecting millions of dollars in statutory royalties from consumers when they purchase blank digital audio media.
The key here is that these are statutory royalties. They are NOT a tax. They are described as royalties in the law, and they function exactly as royalties.
A royalty is what you pay in exchange for the right to make a copy. This is the ordinary meaning of the term "royalty", as it is used throughout copyright law, and there is absolutely no evidence that it means anything else in the context of the AHRA.
I submit that by accepting these statutory royalty payments from the general public, the recording industry, and every major record label claimed this money, has incurred an obligation to permit the public to exercise the rights that they have paid for, to the tune of millions of dollars per year.
This is NOT an issue of fair use. This is an issue of consumers receiving the rights that they have paid for.
Kudos for Rep. Boucher. We need more representatives of his caliber with his level of committment to the rights of the people.
Wow, not only did he think arresting Dmitri Sklyarov was a bad idea:
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This unfortunate legal action highlights the overly broad terms of the criminal provisions of the Digital Millennium Copyright Act ("DMCA"). It clearly demonstrates the intrusion of these provisions on the ability of American citizens to exercise their legally protected fair use rights,
(http://www.house.gov/boucher/docs/sklyarov.htm
but he also gets that the entertainment industry wants money off the public everytime you listen to music or watch a movie.
As NTIA recognized in its letter, one of the foremost concerns reflected in the Congressional report upon passage of the DMCA was that changes in the law could chill the exercise of consumers' traditional "fair use" rights, and move us all toward a "pay-per-use" society.
Unfortunately, the announced exceptions to the rule are so narrow as to be practically meaningless. Fair use is not protected.
...Congress in its next session should act to prevent the creation of a "pay per use" society, in which what is available today on the library shelf for free is available in the future only upon payment of a fee for each use.
(http://www.house.gov/boucher/docs/payperuse.ht
Wow! That'll teach the entertainment industry to only give him $18,500 when the telephone industry gave him $49,000 (http://www.opensecrets.org/politicians/detail.as
"Free software as in beer, copy protection as in racket" - Telsa Gwynne
I agree completly.
I can't remember the number of times I've sat here and listened to all the armchair QBs on slashdot say "If I had the chance I'd make a diffrence.". Well, guess what! This is your chance. Get up, find a stamp and do your part. It's easy, even a post card will work. Even if doubt your letter will effect anything, don't worry it's cheap, easy and it will definitly benifit a postal system that could use some help anyway.
Communication is about content not presentation.