The lawsuit said the protected
album, "Charley Pride: A Tribute to Jim Reeves," does not offer a
disclaimer that it will not operate on computer CD players. It also
requires a consumer to register personal information in a proprietary Web
site before downloading the songs onto a computer, raising privacy
concerns, the suit says.
"The law requires companies who are selling products to give the consumer
material information that is relevant to making decisions about whether to
buy the product or not, and Fahrenheit did not do that," Ira Rothken, the
attorney who filed the suit, said Friday.
The practice of embedding copyright-protection technology in CDs is gaining
popularity, as record labels seek to protect music from file swappers. The
recording industry, including Bertelsmann's BMG Entertainment, is suing
file-sharing service Napster for copyright infringement. Despite successful
measures to cripple Napster having been passed through the courts, other file-trading clones
continue to find ways to distribute MP3-encoded songs online.
Up to now, audio on most CDs could be played on a PC. Software allows people
to convert those songs into the MP3 format, compressing standard audio
tracks into smaller, digital files. The resulting files can be distributed at
will via the Internet or copied onto MP3 playback devices.
SunnComm's technology prohibits people from listening to a CD on a
computer without registering on a separate Web site first, making it
difficult to freely copy the album. The company already has a revenue deal with German media
Executives from Fahrenheit and SunnComm said they had not seen the
complaint filed by Rothken. Nevertheless, Fahrenheit maintains it has
adequately provided a disclaimer on its CD case informing buyers of the
copyright protection embedded in the disc.
"There's a disclaimer on the outside, and we're not preventing anyone from
doing downloads," said Peter Trimarco, the chief executive of Fahrenheit.
"But we're saying you have to go to the Web site to do it. It's not being
designed to be a distraction."
A photocopy of the CD's packaging faxed by Trimarco to this publication includes a disclaimer that reads: "This audio CD is protected by SunnComm MediaCloQ Ver
1.0. It is designed to play in standard audio CD players only and is not intended for use in DVD players. Licensed copies of all music on this CD are available for downloading. Simply insert CD into your computer to begin."
However, Rothken criticized the disclaimer for what it left out, such as
the inability to play the CD on a computer and the inability to transfer
songs onto portable MP3 devices.
"Fahrenheit has statements on its CD case which do not address these
issues," Rothken said. "The omissions are also unfair business practices."
The lawsuit seeks an injunction against Fahrenheit and SunnComm that would
keep them from tracking consumer habits and require them to provide
adequate privacy notices on the CD case.