Replay Music - Is It Legal?
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Some recording companies have recently been using DRM for copy protection on ordinary audio CDs. Sony BMG and EMI have made the headlines for implementing it. Half of Sony BMG’s US releases are now on copy-protected media, including chart toppers like the new Backstreet Boys’ CD. The CDs can only be copied 3 times, and those 3 copies cannot be copied.
The protection prevents ripping audio to MP3, and it relies on Windows Media DRM. Some portable MP3 players, including the ubiquitous iPod, don’t support Windows DRM. Teeny boppers who can’t get Backstreet Boys on their iPod will be furious. Sony BMG hopes that this will push Apple into making iPods compliant with their copy protection, but Apple is doing fine by offering songs in their iTunes store instead. Meanwhile, consumers are caught in the middle of the companies’ disagreements.
Programs like Replay Music can help people to defeat the copy protection. Ordinary recording programs like MusicMatch and iTunes rip the audio and encode it as an MP3. The DRM bars this type of recording. Using Replay Music, as long as the CD plays on your computer, it can be recorded from the sound card. Start a copy-protected CD playing with Windows Media Player, then Replay can catch what the sound card processes. You can do the same to make unprotected versions of your iTunes, Yahoo! Unlimited, Napster, or other DRM MP3s.
Replay Music and similar programs are a workaround to circumvent any copy protection methods you can conceive of, short of making the CD not work on computers at all. So this has to be illegal, right?
Replay obviously doesn’t want you to think so. They have an entire FAQ to claim that their program is legal. The FAQ includes some research, a snip of copyright law and a snip of the Digital Millennium Copyright Act (DCMA). But sadly, it seems that those people at Replay cannot read. They quote from a section on circumventing copyright protection systems but not the part that applies to Replay:
§ 1201. Circumvention of copyright protection systems
(b) Additional Violations.—
(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof
(2) As used in this subsection—
(B) a technological measure “effectively protects a right of a copyright owner under this title” if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.
(from DCMA 1201)
That basically describes Replay Music exactly. Audio streams and DRM effectively and deliberately control access to protected material, and this program doesn’t have any purpose outside of circumventing those technologies.
Additionally, Replay’s legal page skips any issue about royalty payments. The program is basically the very definition of a “digital audio recording device,” defined in the DCMA 1001. Other recording programs, such as iTunes and MusicMatch, are not marketed as recording suites, so they don’t fall into this category. As a recording device, the following applies to Replay Music:
§ 1003. Obligation to make royalty payments
(a) Prohibition on Importation and Manufacture.— No person shall import into and distribute, or manufacture and distribute, any digital audio recording device or digital audio recording medium unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments for such device or medium specified in section 1004.
(from DCMA 1003)
It’s certain that Replay isn’t paying royalties (or even think that they should), especially considering the following is copied directly from their website: “be sure to support the artists by buying tracks or CDs of the songs you really like.” Replay compares their program to recording the radio onto tapes or copying audio CDs, but both tapes and blank audio CDs pay royalties.
Of course, the above more or less applies to it being illegal for Replay to distribute the program. It’s not legal to use it either, but there’s not much the RIAA or any law official can do. Recording audio streams and DRM CDs is untraceable. All that anyone online could tell is that you is listening to streaming audio (nothing wrong with that), even if you are recording it on your computer. The RIAA could not track down individual users, but they could make a claim against the Replay company.
That said, let’s take a little deeper look at the actual program.
Next: Closer Look at Replay Music >>
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