Monday, June 20, 2005

Amazon DRM Labeling Falls Short

Apparently Amazon has started to label the new CDs that contain DRM: [COPY PROTECTED CD]. As noted by Joseph Hall on his Not Quite a Blog 2.0:
This is the first time I've ever seen a CD on Amazon listed as [COPY PROTECTED CD] (they're usually listed as ENHANCED or something else). It's the upcoming CD of Amici Forever, Defined. This is likely due to Amazon customers complaining about CDs not working in their devices after purchase.
The (mandatory) labeling of CDs/DVDs has been a subject of legislation and litigation on both sides of the Atlantic. Article 95(d) of the German Copyright Law, which states that content protected by technological measures should be clearly marked and indicate the properties of these measures. The proposed US Digital Media Consumers' Rights Act (DMCRA) would introduce a comparable provision.

Whether Amazon's trying to avoid liability for unplayable DRMed CDs and/or increasing the transparency for consumers so that those can make a more informed purchasing decision, the current labeling falls short. At least, in light of some of the French court case(s) on the subject. In Association CLCV / EMI France (2003) a French Court considered the "DRM label" on EMI CDs: "This CD contains a technical measure limiting the copying possibilities." That the CD was unplayable on certain car stereos was not indicated, and the court considered that EMI had been guilty of misleading the public vis-à-vis the scope of playability of the CD. The court mandated a new text for the label: "Attention, it cannot played on all devices or car stereos."

In another French court case, Françoise M. v. EMI France (2003, confirmed this year), the court considered: Françoise M. (the consumer) established that the CD in question was not playable on all her devices, that this anomaly restricted its usage and constituted a hidden defect within the sense of Article 1641 of the French Civil Code. The French court confirmed that Françoise M. was entitled to cancel the sale against the distributor (citing INDICARE Report, p. 59 - PDF). In other words, as outlined in this earlier post, "one of the main characteristics of the purchased product (playability) is not present and the consumer's legitimate expectations towards the use of the CD have not been met. This could be considered a "breach of contract" between the retailer and consumer, and lead to a liability related to Article 3(1) of the European Sale of Goods Directive (lack of conformity)."

This is all European law, and I'm not sure which (US) provisions could be applicable on an online retailer like Amazon. Still, Amazon's [COPY PROTECTED CD] seems not specific enough to adequately inform consumers of the characteristics of the purchased good. And it is possibly too general a label not to be considered misleading.


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