The Technologies

While it is likely that there will be more such albums in the future, especially as the available technologies improve, we are currently aware of only two albums commercially release in the United States for sale to the public (out of some 32,000 new titles release last year) that have used CD copy protection technologies:

• ?Charley Pride ? A Tribute to Jim Reeves,? an album release by Music City Records. This album uses a technology known as MediaCloQ Ver 1.0 by SunnComm, an Arizona company.
  
• ?More Fast and Furious,? a soundtrack album release by Universal Music Group. This album uses a technology called Cactus 200 by Midbar, an Israeli company.

We understand that these technologies employ a number of different methods to achieve copy protection, but those methods are proprietary to their owners and are subject to confidentiality restrictions. You would therefore need to contact SunnComm or MidBar to obtain information about their technologies.

As for whether these methods involve compressed audio files separate from the CD-quality tracks, we understand that in both cases the record label chose to provide the same music as on the CD in the form of pre-compressed audio files fro play on personal computers (PCs). This saves consumer the time and effort required to rip and compress the entire album onto the hard drive of a PC. In the case of ?More Fast and Furious,? the pre-compressed files are on a ?second session? of the CD. In the case of ?Charley Pride ? A Tribute to Jim Reeves,? the pre-compressed files are stored on an Internet web site from which they can be downloaded when the CD is placed in the CD-ROM drive of the PC.

The provision of pre-compress audio files, with the protection afforded by a digital rights management system, is an ideal mechanism for allowing consumers the benefits of personal use copying while providing creators and owners with protection against massive illegal copying and distribution.

CD Copy Protection and the AHRA

Your letter suggest that the use of CD copy protection technology might somehow violate the terms of the Audio Home Recording Act (?AHRA?). In fact, however, this is clearly not the case.

The devices primarily used to rip CDs are general-purpose computer devices, which are explicitly excluded from the coverage of the AHRA. Moreover, the AHRA was a legislative compromise reached years before the development of peer-to-peer systems and the resultant massive infringements they facilitate.

The AHRA primarily imposes obligations on manufacturers of ?digital audio recording devices,? equipment carefully defined as devices designed or marketed for the primary purpose of making copies of digital musical recordings. Specifically, the manufacturer of such a device is require to implement a copy control system known as the ?Serial Copy Management System? or ?SCMS? and pay certain royalties. In exchange for complying with these obligations, the manufacturer and users of such a device enjoy a limitation on certain infringement sections against them. That is the basic compromise embodied in the AHRA.

The only requirement imposed on distributors of recorded music is that they encode accurately the information used by SCMS. But SCMS is not a necessary part of CD copy protection technology, and there is no need, therefore, to interfere with the operation of the SCMS system.

Beyond the specific technical requirements of SCMS, your letter seems to suggest that the AHRA imposes on distributors of recorded music a broad requirement to enable copying of their products. Nothing in the AHRA affirmatively requires that a CD be copiable, let alone recordable in any particular device.

Certainly, there is no policy justification for turning the limitation of actions contained in the AHRA into some kind of broad affirmative right to copy CDs. Indeed, a broad affirmative right to copy would make it impossible to stop the massive, viral reproduction that occurs by individuals who upload and download ripped copies of CDs through so called ?file-sharing? services and programs. The sad reality is that much of the copying of CDs is not for the personal use of the individual, but for the purpose of selling it or giving it away to others, including to millions of anonymous downloaders on the Internet. Surely, no on can expect copyright owners to ignore what is happening in the marketplace and fail to protect their creative words because some people engage in copying just for their personal use. That would be like saying that retailers should not use security tags on their merchandise because not everyone shoplifts.

In any event, as I explained above, there are multiple approaches to CD copy protection available from a variety of technology companies, and the effect of each of them may vary depending on the design of the particular CD player or recording device being used. It is therefore not possible to provide a definitive pronouncement on the relationship between CD copy protection technologies and AHRA-compliant devices, because it is not possible, as a practical matter, to test the technologies in every devise that exists in the marketplace.

As a general proposition, however, we understand (based on information provided to us by Universal Music Group) that Midbar?s Cactus 200 technology does not prevent the making of a copy on any device or medium for which a royalty has been paid under the AHRA. In an initial pressing, that technology did interfere with such copying, but that was because the encoder provided by the Israeli company reset the generation status bit to mark the disc as a first generation copy. As soon as this error was discovered, UMG destroyed its inventory of such discs and re-manufactured them with the proper bit settings.

We have no information on the operation of the SunnComm technology.

Consumer Information

Each of the two albums referred to above incorporates consumer notices on the outside and inside of the CD jewel case. More specifically:

• The ?J? card (the album back cover) for ?Charley Pride ? A tribute to Jim Reeves? contains the following notice:

  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.

  The same notice is printed on the CD. In addition, once the jewel case is opened, further information is provided on an insert card opposite the CD itself. This notice says, in part:

  This product is protected with SunnComm?s MediaCloQ Digital Content Cloaking Technology designed to prevent unauthorized duplication or distribution of Digital Original Audio files...?

  It then goes on to explain how to obtain compressed versions of the same tracks for use on the consumer?s PC. It also provides a toll-free customer service number for assistance.
  
• The ?J? card for ?More Fast and Furious? likewise contains a notice to consumers on the back of the CD case, as follows:

  This audio CD is protected against unauthorized copying. It is designed to play in standard audio CD players and in computers running a Windows Operating System, however, playback problems may be experience. If you experience playback problems, return this disc for a refund.

  In addition, once the jewel case is opened, further information is provided on an insert card opposite the CD itself. It says, in part:

  Thank you for purchasing this CD. Each audio track on this CD is protected from unauthorized copying. Great care has been taken to ensure a high-quality listening experience, with no degradation of normal CD sound quality.
  
  This CD is designed to play in standard audio CD players and also contains an audio-player application specifically designed to play the music from this disc on computers running a Windows Operating System?

  It goes on to explain step-by-step how to obtain compressed versions of the same tracks for use on the consumer?s PC. It also provides a toll-free customer service number for assistance. Finally, it informs the consumer::

  If you experience playback problems using your standard audio CD player or on a PC with the above specifications, you may return this disc for a refund.

  This extensive labeling reflects the importance record companies place on providing complete and accurate information to customers, as well as how highly they value their customer relationships.

Audio Quality and Testing

Information as to the steps taken by the technology providers to ensure sound quality and equipment safety must be obtained from them, since the methods they use for CD copy protection are proprietary to them. Having said that, you can rest assured that, to record companies and their artists, sound quality is a paramount consideration. When you consider the time and effort that artists, producers and labels spend in the studio perfecting, and perfecting again, the quality of their recordings, it is apparent that great sound quality is what they promise their fans; it is the core of the consumer offering.

All of the companies offering and considering the use of CD copy protection technologies have the same objective ? to perfect them so that they work effectively, and without any adverse consequences. This is the marketplace at work ? and marketplace competition is the best way for the best technology to emerge.

As for independent or government sponsored testing, we don?t see why technologies to protect copyrighted musical content should be treated any differently than technologies to protect copyrighted movies, videogames, software or books ? none of which has been subjected to the kind of independent testing you describe.