Tech.gov: You Can't Copy That

Two separate courts, one in California, the other in New York, have issued orders for 321 Studios, maker of DVDXCopy, to stop selling its software. That software includes DeCSS code, which circumvents the copy protection mechanism in commercial DVD movies--an action that is expressly forbidden by the Digital Millennium Copyright Act, no matter what the circumstance.

The orders aren't permanent, at least not yet. And on Monday, March 8, the same New York judge who ordered 321 Studios to stop selling its software granted a temporary stay to his order, pending a hearing set for March 15.

The DMCA has what's known as a prophylactic regulation (I kid you not). This preventative blanket rule takes neither context nor intent into account. So it doesn't matter if you want to use DeCSS and DVDXCopy to transfer the content of a disc you've bought to a media server in your home, or if you intend to rent multiple movies from your local video store and copy them so you don't have to pay for subsequent rentals.

That's the way the DMCA was written, and it's also one of the reasons why 321 Studios has lost its case thus far. The company argues, among other things, that consumers have fair-use rights--like making backup copies of movies they've paid for--and that its software allows them to exercise those rights. The company also claims that its products include built-in antipiracy technology to prevent wholesale copying and distribution of copyrighted works.

Not Much Is Fair

The Motion Picture Association of America and representatives for some of its members who sued 321 Studios don't accept 321 Studios' antipiracy claims. The plaintiffs gave the court examples of people who did, in fact, use DVDXCopy to run movie piracy businesses. But even if the MPAA and its members thought there was adequate antipiracy protection in 321 Studios' software, that would be irrelevant under the DMCA.

The law's prophylactic rule makes relatively few exceptions for fair use, far fewer than the exceptions that exist in standard copyright law, according to Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation. In addition, the right to a backup copy is hotly contested and has never been brought up in court--unlike the right to time-shift TV programs using a VCR, TiVo, or a similar device, which was settled in the 1984 Betamax decision (Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417).

Consumers Powerless

Because of the DMCA's blanket circumvention prohibition, consumers are at the mercy of copyright holders when it comes to digital media. Though undoubtedly most content providers recognize the need to provide customers with products they will both pay for and enjoy, which means allowing a certain degree of flexibility when it comes to fair use of those products, specific proscriptions on content use are subject to the copyright holders' whims. The DMCA's broadness has tipped the balance too far to the copyright holders' side without providing adequate consideration for consumer rights.

Should movie and music studios have the right to prevent people from wholesale copying and distribution of their works? Absolutely. I said as much in my column on the broadcast flag; and I and haven't changed my mind. But in trying to safeguard the rights of copyright holders, we've been locked into a system that doesn't recognize legitimate uses for content we've paid for and will use only for our own entertainment. (See the EFF's guide to unintended consequences from the DMCA for related information.)

The emphasis on backup copies in these arguments is misleading, in my opinion. To me, the right to a backup could imply some sort of obligation on a store's part to replace a CD or DVD that was somehow damaged after I bought it--which I don't believe is appropriate. These types of media products don't come with that kind of warranty.

Getting What You Pay For

When I buy a movie on DVD, what's valuable to me and what I'm really paying for is the content that is stored on that shiny disc. Because it's the content and not the means of delivery that's key here, once I've paid for it, I should be able to play that content on my PC or my laptop or any player in my home. And if I want to save it to my protected, internal home media server to make it easier to access from anywhere in my networked home, or if I want to store it on my laptop so I can enjoy it when I travel, I should be able to do that. Even the DMCA doesn't explicitly say that I can't. Practically, however, the DMCA keeps me from legally doing any of these things because I would have to bypass the encryption used on DVDs.

I can do all of the above with an unencrypted commercial music CD that I've purchased and not worry about getting sued. I can even dub a CD or create a music mix for my personal use. These things are generally allowed as part of fair use, albeit grudgingly by some copyright holders. The only real difference between such copying of CDs and copying DVDs is the DVD's use of encryption that the DMCA specifically addresses.

With more and more encryption technologies on the horizon, from encrypted CDs to changes in the MP3 format, to copy-protected Super Audio CDs and DVD-Audio music discs, to new technologies that companies such as Hewlett-Packard and Philips intend to build into their rewritable DVD drives, digital media is only going to get more restricted.

But there's got to be a middle ground where copy protection rules that safeguard the rights of content producers also guarantee consumers a baseline of fair-use rights to content they've paid for.

For a primer on fair use, see Stanford University's guide.

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