In its tri-annual hearing on "access control measures" (Section 1201(a)(1) of the DMCA), the Copyright Office is supposed to weigh both existing consumer harms and those substantially likely to occur in the next three years. EFF argued that so-called copy-protected CDs often malfunction or simply fail to exhibit their stated functionality, hence operating as de facto access controls.

Two months ago I listened to an RIAA attorney tell the Copyright Office that only a handful of copy protected discs had been released in the United States. That wasn't true at the time, and it doesn't seem that it will be true in the near future either:

"BMG claims that it has already successfully deployed MediaMax CD-3 on a number of promotional and advance release discs in the US and will begin using the technology at retail immediately in the domestic market."

This may seem like a small thing to point out, but I think it's illustrative of the kind of evidentiary difficulties inherent in the Copyright Office's rule making. Nobody can prove that these discs cause consumer harm except the RIAA's member companies. Thus existing harm is a difficult thing to prove from the consumer advocacy side of the room. Future harm is equally difficult to prove because the record industry's plans for releasing the discs are only known to, that's right, the record companies. When asked if they would affirm that the member companies would not be releasing these discs in the next three years, the RIAA demurred. Now, it appears that there will be a substantial number of the discs appearing on the U.S. market, so I hope that the Copyright Office is paying attention.

(The piece also contains coverage of EFF's "Let the Music Play" campaign.)
.:link:. | Thanks, Fred!