RIAA SAYS COPY PROTECTION IS ‘CONSISTENT’ WITH HOME RECORDING ACT
It’s pointless to address other digital music issues until piracy has been brought under control, RIAA said in April 8 response to request from House Judiciary Committee Chmn. Sensenbrenner (R-Wis.) for input on application of copyright law to the Internet (CED April 11 p6). “The ultimate solution” to piracy lies in cooperative effort between content owners and technology industries to create digital copy protection, RIAA Pres. Hilary Rosen said. She said protecting CDs against PC copying would be consistent with 1992 Audio Home Recording Act (AHRA) because only consumer recorders, not PCs, were granted immunity for copying by that law.
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In 22-page letter to committee, RIAA suggested joint development with CE companies of industry-standard copy protection in manner similar to that worked out for Serial Copy Management System (SCMS) sanctioned under AHRA. “The recording industry does not favor government intervention in a marketplace that is working, and we do not favor the unwarranted regulation of technology,” Rosen said. But because marketplace may not be working well enough to protect digital music, there may be “some productive role” for govt. For instance, she said, Congress could exempt multilateral standard-setting initiatives from antitrust prosecution.
“We don’t have all the answers, but we have some new ideas,” Rosen said. Because commercially released CDs have copy management encoding for use in recording devices with SCMS, “one could imagine technological solutions that take advantage of this information and respect it in devices not covered by the AHRA as well as those that are covered by the AHRA,” she said. Multi- industry system also could make it possible to close what has been called the “analog hole” that lets copiers circumvent digital copy protection by conversion from digital to analog to digital, Rosen said.
To promote joint industry development of copy protection, Rosen suggested legislating antitrust exemption enabling “participants to incorporate particular technologies into standards on their merits without fear of treble damages suits by the proponents of other technologies that could haunt the participants for years.” She said although open standards were desirable, industries might have to settle on single technology - - but that could expose participants to risk of antitrust litigation that had short-stopped previous standards-setting efforts.
In lieu of standard, labels “unilaterally need to try the copy protection technologies available in the marketplace,” Rosen said. Standard system would be preferable to “avoid confusing or aggravating consumers through technical incompatibilities,” she said. Rosen took aim at PC industry, particularly as impediment to industry standards.
“A question has been raised as to whether CD copy protection is consistent with the AHRA,” which she said “provides a limited immunity for certain copies created using devices and media that comply” with Act. “It certainly is,” Rosen said. “The computer industry, to which the AHRA does not apply, chose not to participate in the compromise created by that Act. It cannot now claim to be entitled to the benefit of that bargain -- immunity from liability -- while avoiding any responsibility for protecting recorded music that is the basis of that immunity.”
Among other suggestions to committee, RIAA said it also could legislate performance right for sound recordings, something that “has been an intellectually indefensible gap in the copyright laws for many years,” Rosen said. But she said lawmakers should refrain from: (1) Broadening first sale doctrine to permit making of more archival copies. (2) Passing proposed Music Online Competition Act, “cornucopia of disparate provisions that would have a profound impact on the rights of copyright owners.” (3) Interfering with Copyright Arbitration Royalty Panel (CARP) process for setting rates and terms for Webcasting or its final decision.