The 'Rootkit Debacle': The Latest Chapter in the Story of the Recording Industry and the War on Music Piracy

Abstract

In the age of digital music, illicit copying or burning of CDs is a rampant problem that undermines the rights of copyright holders, record labels, and artists alike. The recording industry has attempted to address this problem by manufacturing and releasing CDs with various types of digital rights management (DRM) technologies. Most recently, Sony BMG introduced CDs containing DRM software that was intended, among other things, to limit the number of copies of the CD the user could make, and prevent the user from sharing the content of the CD on peer-to-peer networks. However, the manner in which this software operated was highly controversial, for example because it collected information from the user's computer and installed a “rootkit” on the user's hard drive that made the computer susceptible to viruses. This latest effort to copy-protect CDs, which has come to be known as the “rootkit debacle,” has raised numerous legal issues that are examined in this article, including Sony BMG's potential liability under certain federal and state laws, as well as the potential liability of consumers and security researchers under the Digital Millennium Copyright Act. The article also proposes a solution for striking a balance between the recording industry's right to protect its intellectual property and music fans' right to enjoy their CDs.

Keywords: Copyright, digital rights management, Digital Millennium Copyright Act