The CD version of Stand Up, the latest release from the Dave Matthews Band, contains copy control technology that is ostensibly designed to limit or prevent copying. The technology doesn't do a particularly good job at stopping copying, however, though it is very good at annoying consumers. Artists don't appear to be fans either. The Dave Matthews Band has posted instructions on their website for how to work around the technology to copy the songs on the CD for playback on an iPod.

For Macintosh users such as myself, there is nothing additional to do, since the copy-control technology does not work on a Mac. For Windows users, there is no need to hack the program since making several permitted copies using different programs eventually leads to the songs ending up on your iPod. I'm not sure about Linux users, though I am guessing that the copy control doesn't work on their systems either.

The Dave Matthews Band posting and its label's use of copy-control technology raises several issues. I discussed the consumer implications of the technology in an earlier posting on the Coldplay CD. The web instructions also highlight the continuing divide between the labels and artists (see the iTunes related reaction of Japanese artists to Sony Records for another example).

I'd like to focus on two other issues here though. First, the private copying implications. The Dave Matthews Band may support their fans copying their music onto iPods, but Canadian law still does not. Canadians that follow the band's instructions appear to infringe Canadian law. Moreover, it is worth noting the recent remarks of RIAA CEO Mitch Bainwol. In a speech to NARM, Bainwol commented that the RIAA has "no objection to personal use burning" (slide 59). This raises the question of why Canadians are stuck paying millions for the private copying levy, when the levy doesn't cover the copying they typically engage in, the artists have only received a fraction of the money collected, and the industry itself does not object to the copying (and in the U.S. at least does not expect any additional compensation for such copying).

Moreover, consider these instructions within the context of Bill C-60 and its anti-circumvention provision. The provision applies to a "technological measure," which is defined as "any technology, device or component that, in the ordinary course of its operation, restricts the doing . . .of any act" that would constitute an infringement of several different Copyright Act provisions. Section 34.02 of Bill C-60 provides copyright owners with a basket of rights against anyone who "circumvents, removes, or renders ineffective a technological measure" for the purpose of copyright infringement.

This brings us to the question of these provisions and copy control technology. First, leaving aside the private copying issue, consumers that follow the Dave Matthews Band instructions would not appear to run afoul of this particular provision since they are not circumventing anything. Mac users are proceeding as usual, while Windows users are using the functionality built into the copy control mechanism to make their desired copies.

Second (and more interestingly), does the copy control technology even qualify as a technological measure under Bill C-60? If it does, should it?I don't think we have a clear answer here. Other jurisdictions focus on the effectiveness of the technological measure. Given the Dave Matthews Band instructions, it is hard to see how these measures are effective. In Canada, however, the bill speaks of "ordinary use." The copy-control may be advertised as being ordinarily used to control copying, even if it does nothing of the sort. It should not be enough to simply characterize a technology as a technological measure and immediately enjoy legal protections. The failure to include an effectiveness standard in Bill C-60 is yet one more reason why Canadians should stand up to the proposed copyright reform package.
 

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