In April 2006, a Judicial Panel on Multidistrict Litigation consolidated claims from three separate districts in a lawsuit against Sony BMG Music Entertainment for a piece of software that the corporation included on four million CDs sold in retail outlets. [1] The software, eXtended Copy Protection (XCP2), buried what is often called a “rootkit” in low level areas of the end user’s personal computer, presumably without notice by the end users. [2] This software attempts to monitor and control the consumers’ use of the CD, preventing them from illegally copying the CD and disseminating its contents on the internet. The result, as alleged in the lawsuits, was higher susceptibility to computer viruses and other damage. [3] Sony BMG eventually recalled millions of copies of fifty-two albums that contained XCP2 software from record store shelves amidst a storm of media activity around the issue. [4] Sony BMG’s use of XCP2 software, made by British firm First 4 Internet, first came to public attention on October 31, 2005 when a blogger posted detailed information about the software on his website including a warning for people to avoid Sony BMG CDs for the time being. [5] On November 10, 2005, the first virus exploiting XCP2 software was announced. [6] On November 16, 2005, United States Computer Emergency Readiness Team [hereinafter US-CERT], a division of the Department of Homeland Security, issued an advisory on the XCP2 Digital Rights Management System, including a warning about putting affected discs in computers. [7]


On November 19, 2005, the Attorney General of the State of Texas filed a lawsuit against Sony BMG. [8] This action was followed promptly by class action lawsuits in California and New York. [9] Nine actions from New York, one from California, and one from New Mexico were involved in the consolidation action of April 2006. [10] Elsewhere, a complaint to the Federal Government was filed in Italy against Sony BMG. [11]


With this flurry of lawsuits, the term, “Digital Rights Management” was thrust into the court system. As the consolidated action settles and the term “Digital Rights Management” makes its way into common parlance as well as legal nomenclature, an opportunity arises to discuss the history of rights management systems in the audio industry that has led to the current situation.


This comment will analyze the complex history of rights management in the music industry over the past 100 years. This history includes a technical look at the difficulties in enforcing copy controls, various music release formats and the rights management systems on which those formats relied, and the struggle with adding ex post facto rights management systems to formats that are already pervasive. This comment then discusses the various reasons why rights management systems are not only desirable, but necessary in today’s environment. With a thorough background of the issues relating to rights management, recommendations are provided as to how to remedy the various problems that plague the music industry and set a more appropriate path as technology continues to affect the rights of copyright holders….


Nika Aldrich