Can You Violate Copyright Law With a Magic Marker?

Sony is selling CDs outfitted with Key2Audio, a technology that prevents you from burning a copy on your home computer or converting the songs into MP3 files.Hackers, in turn, are foiling Key2Audio by scribbling on the discs with felt-tip pens. Are they running afoul of federal copyright laws?

Yes, but the feds won’t be crashing down doors in search of pre-teens ripping off Shakira’s latest opus. Section 1201 of the 1998 Digital Millennium Copyright Act  makes it illegal to circumvent any copy-protection scheme. Since Key2Audio was designed to prevent piracy, the Magic Marker trick qualifies as such a measure.

Yet most hackers needn’t fear the DMCA’s stiff criminal penalties, which include up to 10 years behind bars and $1 million in fines. A circumventer is unlikely to be prosecuted unless he’s caught selling the copied CDs.

Those who spread the Magic Marker method via Internet news groups or articles are on shakier legal ground, however. Section 1201 also includes a broadly worded “trafficking provision” that forbids the dissemination of copyright-shirking methods. Writers who describe the method could be prosecuted if theirwork is judged to have no raison d’être other than to aid budding pirates. Slate and other media outlets are in the clear, but the geeks who first shared the felt-tip techniques on alt.music news groups could be in hot water.

Bonus Explainer: Another player in the Key2Audio drama who could feel the DMCA’s wrath is the smart-ass who recently tried to sell a Sharpie marker on eBay. Describing the marker, he wrote, “For the purpose of scribbling on Sony CDs.” That could be construed as trafficking a circumvention device, another no-no according to Section 1201.

Next question?

Explainer thanks Wendy Seltzer of the Berkman Center for Internet and Society at Harvard Law School.