Frank Field points out a very interesting statement from Sony BMG regarding the CD DRM they've begun using (Sony BMG Explaining How To Circumvent Its Own Protections?). According to a Reuters wirestory on Yahoo! News, Sony BMG is telling its own customers how to bypass the DRM (Sony BMG Hinders Music Pirates with Protected CD).

Apple Macintosh users currently face no restrictions at all. What's more, if users go to a Web site to complain about the lack of iPod compatibility, Sony BMG will send them an email with a "back door" measure on how to work around the copy protection.

Frank questions whether or not this would violate the anti-circumvention provisions of 17 USC §1201. This does raise some interesting legal points.

The DMCA is very fact and technology specific. Unfortunately, the technical specifications for the DRM at issue aren't readily available. The company that produced the DRM is a UK company with the unfortunate name First 4 Internet. In addition to DRM, the company also produces a filtering program that can supposedly recognize pornographic images. [I've always wondered about these image analysis programs. If they're actually any good, I figure there are far better markets for their use than filtering pornography.]

In any case, the DRM can be found here: XCP-Aurora. Specifically, the DRM would likely be XCP2 - Press Protect.

XCP2 Press Protect is an effective content management solution for use on commercial pressed CDs. XCP2 protected discs are designed to have full playability across all players while ensuring unhampered sound quality. Additionally consumers are able to save and copy the content securely for personal use.

Presumably, this copy protection relies on the autorun feature of Windows to force those placing the CD into a PC running Windows to load and use DRM software. However, in order to play on regular CD players, standard audio tracks must also be present. We already know that this system doesn't work with Macintosh operating systems. I'd wager good money it doesn't work with Linux, either.

The first question, then, is whether such DRM is covered by the DMCA at all. It wouldn't appear that this initial protection, forcing use of DRM software on Windows machines, would be a technological protection measure under §1201(a), which requires that the technology, "in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." Certainly that would not be the case for Macintosh and Linux, since the data is in the clear. It isn't even clear that this would be applicable in the case of Windows PCs, given that the data is provided in the clear. Presumably, a purchaser of the CD is tacitly authorized by the copyright holder to access the cleartext data, since the data is there for use on alternative operating systems. It is not clear why this authorization to access the cleartext data on some operating systems is rescinded because the user has Windows installed. After all, the Windows user could boot into Linux and access the cleartext with the copyright holder's tacit authority.

Under §1201(b), a technological protection 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." Once again, the loopholes for Macintosh and Linux users make me question whether this is applicable even to someone who uses a Windows computer. One also wonders what the "back door" measure is. Would it really be considered bypassing or avoiding? That isn't clear without knowing more about the technology. For example, is holding down the shift key when inserting a CD in order to disable autorun bypassing the DRM, or is it bypassing an annoying feature of Windows? Is holding down the shift key something that is not "ordinary operation"?

In any case, if this "force DRM upon load if Windows" technology is covered by the DMCA, then things get interesting. For example, is Sony BMG authorized to do this? Who can authorize people to circumvent the technology? This is probably controlled by contract with First 4 Internet. If it isn't then there would likely be grounds for First 4 Internet to sue Sony BMG (though very unlikely). After all First 4 Internet presumably has used its own technology to protect its own copyrighted works. It would also raise the question as to whether Sony BMG could sue third parties for redistributing the hack. Sony BMG might not have that right, though First 4 Internet would. See, Who Can Sue Who Under the DMCA?.

Likely, we'll never get the answers to these questions, which is too bad. Nor is it likely that Sony BMG will explain why, if they're so concerned with "casual piracy" as they put it, they'll explain to anyone who is frustrated by their DRM how to bypass it. Odd.

More about the recent adoption of CD DRM by major record labels here:
Record Companies Intend to Make Criminals of Us All
Record Labels Fear Apple's Lock-In?