another attack on the DMCA

DVD Copying Software Sparks New Legal Battle

321 Studios is heading to court to find out why you can legally make copies of video tapes and CDs, but not DVDs.

Matt Berger, IDG News Service Friday, October 04, 2002

321 Studios is set to release a product that it claims will allow consumers to make perfect copies of their DVDs, but before the product hits the market, the start-up must first weather a legal storm brewing in its path.

The software maker plans to release on October 31 a product called DVD X Copy, which allows users to create "bit-for-bit" copies of their DVDs using a standard recordable DVD drive, says company president Robert Moore.

While the software promises to give consumers the same privileges they have for copying VHS movies, it is potentially against the law, according to industry experts. A U.S. legislation called the 1998 Digital Millennium Copyright Act deems it illegal to distribute tools that circumvent copy prevention technologies used to protect DVD content. That is just what 321 Studios' software does.

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Encryption Systems

Movies are stored on DVDs using an encryption technology called Contents Scramble System, or CSS. 321 Studios has designed its software to copy a movie to blank DVDs using a freely available decryption technology called DeCSS. At least two federal courts have already determined that it is illegal under the DMCA to distribute DeCSS, says Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, who specializes in fair use and intellectual property.

While 321 Studios has not been asked to stop distributing an existing version of its software, which allows users to copy a DVD onto a CD, Moore says he is not waiting for a lawsuit to land in his lap. The company has taken a preemptive strike against its movie industry foes by filing a lawsuit aimed at protecting the software from being squashed.

Moore and his lawyers argue that people should be able to create backup copies of their DVD movies, just as they can copy VHS movies or music CDs. It's a matter of fair use, they say. If a DVD is damaged, for example, a user should be entitled to own a backup copy. The DMCA, however, has so far hindered such technology from being distributed, and critics are attempting to get the legislation modified.

What About Fair Use?

"We believe those provisions in the DMCA are unconstitutional because they basically trump the fair use rights," says Michael Page, an attorney with Kecker and Van Nest in San Francisco, who is part of the legal team representing 321 Studios in its lawsuit. "If you make it illegal to make a backup copy of a work that you lawfully own, you have overstepped the legitimate bounds of the Copyright Act."

The DMCA ties the hands of software makers, says von Lohmann, who has helped fight similar cases against the DMCA. It is not against the law for users to own copies of their DVD movies, but the DMCA prohibits the distribution of any tools that make such copying possible.

"If someone wants to make fair use of a DVD they bought, they need to circumvent the copy protection technology to do that," von Lohmann says. "The DMCA would arguably make that illegal.

"If nobody can build the tools, then essentially we've all been denied our fair use rights," he says. [...]

That preemptive strike has prompted a legal spar. Nine movie studios named in the company's suit have asked the court to throw out the motion for a declarative judgment. The U.S. Department of Justice has also filed a motion to intervene in the case, and is backing the movie studios in asking the court to throw out 321 Studios' motion for dismissal.

A hearing on that leg of the lawsuit is scheduled to take place on October 15 in San Francisco, 321 Studios says.


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One Response:

  1. waider says:

    I read an article a while back (alas, I have no URL for it), according to which fair use isn't actually guaranteed by the Constitution at all. Rather, it is granted in section 107 of the 1976 Copyright Act. The Constitution's wording on copyright is in article 1, section 8:

    To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

    It's certainly an interesting point of view, given the common use of the phrase "constitutionally granted fair use rights" or similar. Since I am not a lawyer (or even an American), of course, I can't comment on its accuracy.

    On the plus side, this is the first article on the DMCA I've seen in a long time that doesn't use the phrase "chilling effect". But then it's not invoking the First Amendment, either.