This is the letter I wrote to Trading Standards Birmingham on 14-Nov-2001. Unfortunately, I had no success, because they chose to avoid taking action by claiming that: - If the CDs play on normal CD players, then the CDs are okay, so no legal action is possible here. - If the CDs don't play on other devices, then those devices are at fault, but since playing CDs isn't their primary purpose, no legal action is possible there either. To me, this seems like a load of nonsense, just twisting the whole picture around to worm their way out of the situation (excuse my bluntness), completely ignoring the basic consumer rights that are being eroded and abused here. So, here is my letter, in case it might be useful as the basis of other letters in other situations. - Jim - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Admin section Jim Peters Birmingham Trading Standards ...etc... 155-157 Corporation Street ...etc... B4 6TH 14-Nov-2001 Dear sir/madam, I phoned yesterday to report the problem of so-called `copy-protected' CDs being sold in Birmingham. It was quite hard to explain all the details on the phone, so I thought I'd put a better explanation in writing. The particular CD that I tested in detail was Natalie Imbruglia's new album "White Lilies Island", which I bought from the large HMV in the city centre. (I believe the same CD is available from all the major record shops). The CD was sold as a normal CD -- it was in the CD section, and there was no warning message on it to say that it was any different to a standard audio CD. Inside the package, embossed into the clear plastic there is also the "compact Disk digital audio" logo. To me, as a consumer, this indicates that this is a standard audio CD, which I should expect to be able to play in any device that is sold as capable of playing CDs. Devices sold as capable of playing audio CDs include: computers, DVD players, PlayStation 2 machines, hi-fi stereo systems, and so on. However, this particular CD has problems playing on many of these devices. This suggests that one or other of the products -- either the CD or the playback device -- is being sold under a misleading description. From my tests it is clear that it is the CD that is at fault. What is more, the CD was made intentionally faulty in an attempt to restrict the types of device that it could be played on. (This is backed up by a copyright message for Midbar on the back of the package, which is a well-known company that develops media protection mechanisms). I feel that there is a clear Trade Descriptions issue here. This CD was sold as a genuine CD, when it is not in fact a CD according to the industry standard definition upon which all these CD-compatible devices were based. If however, you feel that this modified CD should be regarded as a genuine CD, then all the other devices that it does not play on are in breach of Trade Descriptions by claiming to play CDs. Either way there is a problem to be solved. If the CD industry really wants to produce these modified CDs, as a consumer, I can't force them to change their decision through legal means (as far as I'm aware). However, as I understand it, I can insist that they label them and make it clear what is a CD and what isn't, and which devices a particular CD has been designed not to play on. To put it in the plainest way possible: As a consumer, I can go out today and by a device advertised as CD-compatible (e.g. a PlayStation 2), and buy a CD sold as a genuine audio CD (e.g. the Natalie Imbruglia CD), and find that the CD will not play properly on the device. It seems clear to me that there is a trade description and/or statutory rights issue here. TECHNICAL BACKGROUND A genuine CD, created according the industry standard for audio CDs can be played on any CD-compatible device. It can also be copied on any of these devices. In a technical sense there is no difference between playing and copying, because if you can play it, you can also copy it, for instance by plugging a tape recorder into the CD player outputs. (Obviously though, in a legal sense, there is a significant difference between playing and copying.) Because of this, the record industry can never truly stop copying of CDs through technical means, and hence can never truly stop piracy in this way, whether that be large or small-scale. However, there are two ways of playing back a CD -- through an analogue connection (for example, normal hi-fi phono leads), or through a digital connection (for example, inside a computer, or using a digital lead between a CD player and a MiniDisk recorder or a digital amplifier). The record companies have decided to target the digital playback and copying of CDs. If they made a genuine CD, then it could be played and copied on any CD-compatible device. So instead, they choose to corrupt the CD format in carefully selected ways that cause problems for some of these devices and not others. The result is not a fully-conformant CD according to the audio CD standard. The devices that they chose to target with their modifications are those that can generate digital output. This means that digital playback is not possible, and neither is digital copying (which is the thing that they are trying to stop). However, people who are accustomed to play their CDs digitally (for instance, in a digital home cinema system where a digital lead is used to connect the CD player and the amplifier, or on a computer using Windows Media Player 7 with the "digital" option turned on) will have problems playing the CD. (This has been verified -- someone contacted me to report that only the first 10 seconds of each song on the Natalie Imbruglia CD would play on his home cinema system). In practice, the modifications to the CD format aren't as precise as the record companies might wish, and the results are very varied. Some computers, for instance, can make perfect digital copies (exactly what the record companies don't want), whereas others don't even recognise the disk as an audio CD. I have gathered reports from a number of people regarding this CD, and I have made tests on several different devices myself. All this technical detail is just for your information and understanding. If you need independent verification of this information, I will help in any way I can. In actual fact the technical details make no difference to the basic problem, which is the misleading description of these modified-format CDs as they are sold. (Or alternatively, the misleading description on the CD-playing devices, depending on how you wish to look at it). I believe that in the short term, a large part of the problem could be resolved by insisting on full and clear labelling on these modified "copy-protected" CDs, so that people know before buying the CD which devices the CD is likely to play on, and which it will have problems with. Yours sincerely, Jim Peters P.S. Additional notes (for completeness): (1) The Natalie Imbruglia CD also contains a custom player application which pops up when you insert the CD on most Windows-based computers. This player doesn't play the CD-quality audio from the CD (because this cannot be read reliably on most computers due to the format modifications). Instead it has its own compressed version of the audio, based on 80kbps encoding and a 32kHz sampling rate. Several people have commented on the poor quality of this compressed audio. A Windows user buying the CD to play on his/her computer would have expected full-quality uncompressed CD audio (~1370kbps, 44.1kHz). It seems to me that this is a trade description breach, as the quality delivered is not that which is expected from a standard audio CD, which is what it was sold as. (2) There is some additional technical detail on the modifications that are being performed on these CDs in order to restrict their use on certain devices, which might be relevant, but that I didn't mention above because I didn't want to complicate the discussion with too much extra information. From reports published by New Scientist magazine on-line based on the patents held by some of the copy-protection companies, it appears that one of the modifications to the CDs includes making changes to the error-correction codes on the CD. These codes are designed to help a CD player recover from scratches on the disk. It is my understanding that interfering with the error-correction codes in this way would make a CD less reliable once scratched, more so than a genuine unmodified CD. I must say, however, that I have not verified this through experiment (it would be time-consuming and expensive to test this in a scientifically thorough manner). Some of the experiences with these CDs do back up the suggestion that the record companies are interfering with the error correction codes. For instance, reading the Natalie Imbruglia CD digitally on one computer failed repeatably with errors on 11 of the 12 tracks. The computer CD drive was detecting an error on the CD, and aborting the operation. On another CD (by Charley Pride), a BBC engineer confirmed using professional equipment that the corruption level of the disk varied between 5 and 7 on a scale of 0-9. You would expect a level of 0 for a newly-purchased unscratched CD. Whether this counts legally as `not of satisfactory quality', according to the Sale of Goods Act, I don't know. To me, as a technically-minded person, these CDs are clearly not at all "free from fault or defect", as by definition they contain many intentional faults and defects: * Of a Satisfactory Quality, i.e. of a standard that a reasonable person would consider to be satisfactory - generally free from fault or defect, as well as being fit for their usual purpose, of a reasonable appearance and finish, safe and durable. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -