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Copy protection tracks implanted in CDs are a violation of the right to fair use of purchased music, US Representative Richard Boucher (Democrat, Virginia) wrote in a letter to recording industry lobbyists Monday.

"...Record labels have begun releasing compact discs into the market which apparently have been designed to limit the ability of consumers to play the discs or record on personal computers and perhaps on other popular consumer products," Boucher says.

"I am particularly concerned that some of these technologies may prevent or inhibit consumer home recording using recorders and media covered by the Audio Home Recording Act of 1992 (AHRA)."

The letter went out to Recording Industry Ass. of America (RIAA) President Hilary Rosen, and International Federation of the Phonographic Industry (IFPI) Chairman Jay Berman, two mighty champions of industry interests.

Interestingly, a letter from Harvard University Law School Assistant Professor of Entrepreneurial Legal Studies Jon Zittrain, which appeared on the Politech mailing list, points out that while the CD copy-protection scheme may be damnable, it appears to be quite legal under the letter of the AHRA.

"The Audio Home Recording Act was drafted by the publishers," Zittrain notes. "I don't see how anyone reading it could readily find it to say that it prohibits private, technical copy protection schemes that, to be sure, trample copyright's balance."

The act "just says that the record companies can't sue over people making certain kinds of copies, not that they have to allow those copies to be made."

And he provides chapter and verse:

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

And if that's the whole of it, then it would appear that the industry can't sue you for making copies for personal use, but they can make it as difficult for you to do so as they please.

Also notable is the way it appears that a utility like DeCSS would be legal for personal use under the AHRA, but illegal under the Digital Millennium Copyright Act (DMCA).

An amusing question now might be whether the DMCA's injunction against inhibiting fair use is sufficient to render a CD or DVD copy-protection cracking utility legal for home recording use. ®

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