DVD Copyright Case Mulled over by Judge

howhardcanitbetocrea writes "news.com is reporting that the judge in a closely watched lawsuit challenging the legality of DVD-copying software said she was 'substantially persuaded' by past court rulings that favored copyright holders, but closed a hearing Thursday without issuing a ruling in the case." This is a case that could very well determine the future of the DMCA, and the article does a good job of summarizing the arguments from both sides.

This is nice

[jon787]

It is good to see a judge thinking things over instead of following precedent. Precedents have incredible force in our legal system and setting them should be done carefully.

Re:DVD X Copy

[Squarewav]

a hour and a half long movie is about 4 gigs so yes you can fit a whole movie on one dvd-r without extras, however long movies take lord of the rings FOTR ( the single disk version) for example takes about 8 gigs

Re:The Judge should be persuaded by

[sould]

Unfortunately that judgement preceded the DMCA by about 15 years.

The law has changed since then.

With any luck however, the judge will understand the insanity of limiting fair use.

An item such as a DVD copier has a multitude of non-piracy (aar me hearties) uses.

stupid

[SHEENmaster]

The software allows people to exercise their right to make a backup copy of digital media; that's fair use. The MPAA likes to sell multiple copies of fragile media.

"If you can't excersize a right, you don't really have it."

when will they understand

[FuzzyBad-Mofo]

1. copyright protection is the legal protection given to works
2. copy protection is the snake oil used to prevent fair use and to slow incompetent pirates

Please GPL it

[argoff]

If the author hasn't already, I plead with him to please GPL the code. With code all over the internet, they will be powerless to stop it.

Re:The Judge should be persuaded by

[Timesprout]

I dont think there is any issue with DVD recorders per se. Its recoders or recording software that circumvents copy protection mechanisms on copyrighted disks.

Re:stupid

[More Trouble]

The software allows people to exercise their right to make a backup copy of digital media

So does a simple block copy. DeCSS is not necessary for making backup copies. DeCSS is necessary for making unlicensed players, tho. CSS is a licensing tool, not an anti-piracy tool. Maybe they should show the judge that you can easily make copies of DVDs without DeCSS. Think she'd get the point?

:w

It's still the corporations' home turf

[mao che minh]

The cynical side of me wants to say that the judge has suspended immediate judgement in order to appear even handed - to save some kind of face with anti-DMCA folks. He or she has already decided to rule to the highest bidder, and that's the copyright holders.

We'll have to wait and see. Until the ripple effects of the DMCA start to annoy more people (not just techies), the bulk of the rulings will go towards the corporate masters.

circumventing protection != circumvnent copyright

[diatonic]

But there are still fair use arguements to circumventing DVD copy protection. Damaged DVDs can be expensive to replace... and circumventing the copy protection does not circumvent the copyright.

.:diatonic:.

This is great...

[Anonymous Coward]

Directly from the article:

"They just can't traffic in anticircumvention devices," Russell Frackman, a partner with Los Angeles-based Mitchell Silberberg & Knupp who's representing the studios, told the judge.

What exactly is an ANTIcircumvention device? I'm so glad to see that the judge was swayed by such persuasive reasoning as this...

Re:Copyright never expires now

[kavau]

If any work now has solely been release to the public in an encrypted form, then if anyone has copied/clipped/fair-use used the item, then the corporation can always go after the individual; therefore, copyright is completely irrelavent since encryption is enforced forever.

Not really. If I could make a bit-for-bit copy of a DVD and sell it, I would have violated the copyright, but not the decryption ban. Therefore copyright is still relevant. Or am I missing something? Besides, not all media can conveniently be distributed in an encrypted format, e.g. newspapers.

On a different note, doesn't my DVD player necessarily decrypt the data when it displays the picture on the screen? Are all DVD players therefore illegal? Or am I missing something else, too?

Re:DVD X Copy

[Anonymous Coward]

Hollywood confronts DVD-copy software [washingtontimes.com]

Look, 321 Studios got it's start by selling freeware bundled together for $50 and even still sells it to this day. It includes Smartripper and I believe dvdx which is GPL dvdx [sourceforge.net]. DVDToolBox (freeware) can split main movie only two two dvd-rs and also strip out audio and extras, etc. Many in the dvd backup community don't look favorably upon 321 Studios although many wish them luck in court.

What most people do is go to out and buy a dvd burner. Get on google and type in 'dvd copy' that is where it goes down hill. Almost 100 or more hits plus ads are all ripoff dvd software.

I'm keeping a list of ripoff software on my site [mrbass.org] hoping that others don't fall into the trap but it's inevitable.

BTW, in the above article what I'm trying to say is that this DVD Backup Software is irrelevant and not the cause of revenue being lost. All existing laws are already in place. Stop foreign countries, even people on street corners in big cities in USA from profiting off other's intellectual property. Prosecute those who upload movies to newsgroups, irc, p2p, etc.

The average Joe backing up his movie is NOT where the main concern should be. If Hollywood wins this battle is that going to stop the illegal selling or uploading / downloading of movies? Heck no, it'll just punish the average person from legally making a personal DVD backup.

Re:This is nice

[angle_slam]

A trial court judge is REQUIRED to follow precedent. This case is fairly clear: under the DMCA, ALL copy protection circumvention is illegal. The judge really has no choice, unless she rules the DMCA unconstitutional. We really aren't going to get final word until the appeals are through, which will take years.

What about VCR presedents?

[iplayfast]

If she was pursuaded by the recent DMCA rulings, shouldn't she also be pursuaded by the SC rulings on VCR copying? Afterall, the fact that VCR's have a record button, means they are built in order to record. The fact they have a play button means they were also built to play (and in the process unencrypt) video tapes. If VCR's are able to play a video tape, why can't my computer play a DVD?

Substantial noninfringing use

[Anonymous Coward]

I just thought of something I didn't see in any other post. The DVD recorder has substantial non-infringing use so nobody argues that they are not legal. On the other hand, how do you show that breaking CSS has substantial non-infringing use?

We just need to find a bunch of non copyright protected content that's encoded with CSS. Duh. (This is partially a joke because why would that kind of content be encrypted?)

Re:hmm

[sallen]

The judge wondered if it would effectively extend copyrights to keep such works out of the public domain. Zacharia said it would not, because the copyright had expired. "But it's encrypted. If it doesn't stop being encrypted, it's still encrypted," Illston said, adding that such protected works still couldn't be legally copied.

A judge with a clue?

A very intresting clue. One I certainly hadn't thought of. It essentially makes copyright permanent. Even after expiration of copyright, the holders of original masters end up with exclusive rights. As each new technology comes out, super-dvd, super-hot-dvd, dvd-22nd century, they create new product, and sell it. All encrypted, nobody has the right to circumvent to copy. Not quite what the founders had in mind. Only those with 'old technology' ie, vhs, etc, would have something to 'copy' and that couldn't match anything once original works were digitally remastered a first time. I think those MPAA member film vaults just increased in value. Whichever whay the judge goes, it shows there are some on the bench with some long range insight.

Re:circumventing protection != circumvnent copyrig

[IWannaBeAnAC]

The problem is that "fair use" applies to copyright law. Unfortunately there is no similar "fair use" provision in the DMCA for circumventing copy protection.

One of the arguments of the case has been that it does not matter whether copyright is violated or not, as circumventing copy protection is illegal irrespective of the copyright.

But, as I understand the DMCA, there is a link though between copyright and copy protection, as the act only prohibits copy protection when it is applied to a copyrighted work. That is, it is legal to circumvent the copy protection when the content is not under copyright. But, some comments by the lawyers quoted in the article suggest that this is not true, and circumventing ANY copy protection system is illegal? Is that really the case?

Re:yah right!

[Anonymous Coward]

I know exactly how you feel. Over the years I've bought "Switched-On-Bach" on 8-track, cassette, vinyl LP, and finally, CD. Wendy (used to be Walter) Carlos and the record company were paid FOUR times!

Enough is enough. Anybody want a copy? I think I have three I can give away - high bitrate MP3.

I've seen brand-new DVD's fail right out of the box. Try telling a five year old why she can't see the rest of Monsters, Inc. when the damned thing just quits playing.

Re:Movie length does not dictate size

[Anonymous Coward]

I think it's being done as form of copy protection on commercial DVDs to sample the video at excessively high rates.

Boy, that's pretty whacked-out reasoning. Have you ever considered the possibility that movies are encoded at "excessively" high bit rates so that the LOOK GOOD? It doesn't take a trained eye to see the difference between a well-encoded DVD and a poorly-encoded one. The difference jumps right out at you.

Studios want their product to look as good as possible, so they squeeze every last bit onto that disc that they can.

RTFA

[Anonymous Coward]

At one point, the judge called on Department of Justice attorney John Zacharia to answer some questions about the DMCA. The attorney has weighed in on the side of the studios in an attempt to defend the constitutionality of the DMCA.

Illston asked Zacharia to explain the conundrum of locking up copyrighted works behind encryption and then making the breaking of that encryption illegal, even after the copyrights on those works expire. The judge wondered if it would effectively extend copyrights to keep such works out of the public domain.

Zacharia said it would not, because the copyright had expired.

"But it's encrypted. If it doesn't stop being encrypted, it's still encrypted," Illston said, adding that such protected works still couldn't be legally copied.

Nothing that is..

[Kwil]

..except not giving money to the MPAA affilated companies to purchase these ridiculous laws in the first place.

That's the whole point

[Quila]

there's no WAY this is going to do anything other than stop the flow of income into 321 Studios,

They want to make innovators afraid to go into business, eliminating other players in the media business. They want to own and control all media from production to viewing, and this is just a step in that direction.

Re:The Judge should be persuaded by

[91degrees]

The "fair use" purpose of a video recorder is for delayed viewing though. This does not apply to a DVD copier since you can view a DVD at any time anyway. The fair use for a DVD copier is making backups.

Is it possible to backup a DVD in another way? Will the DVD companies replace a broken disc (and of not, why not? The cost of a disc is peanuts). Is the benefit to society of people being able to backup a DVD than the harm caused to the movie industry by people making illegal copies?

Re:circumventing protection != circumvnent copyrig

[zerocool^]

This is convoluted, of course, since you can't copy something if you can't access it. But legislators never seemed to get that far in their reasoning.


It is equally true that "If we can access something, we can copy it". No one ever seems to make that logic leap, either. Especially as applies to DVD's - If we have to decrypt them to watch them, we can also copy them. Or those copy protected audio CD's - if we can hear them, we can copy them.

~Will.

Re:Unconstitutional?

[Communomancer]

Fair use, although codified by statute in the Copyright Act of 1976, was first acknowledged as a right by the Federal Courts (I don't know in what decision the term first appeared). Since, in the absence of statute, the only place the Courts derive authority from is the Constitution, then that's where the Fair Use doctrine stems from. The words may not appear anywhere, but rights that _do_ appear in the text have often given rise to other rights that don't. This is the same as "Right to Privacy" being derived from such rights as association, freedom from illegal search, etc.

Re:Unconstitutional?

[Sloppy]

The problem with the 9th Ammendment is that (obviously) it doesn't say what those other rights retained by the people are.

So one side can say, "just because this right isn't enumerated, doesn't mean it isn't implied." And the other side can say, "just because this activity isn't enumerated as a right, doesn't mean is is implied." And turning to the 9th Ammendment doesn't resolve that.

Re:circumvent protection != circumvent copyright

[Anonymous Coward]

If a Public Domain work is protected by CSS, there is currently no law that prohibits DeCSSing that work.

Except that the de-CSSing tool will itself still be illegal to possess. It can still be used to circumvent encryption on non-Public Domain works and will remain illegal.

And there you have PD works still being illegal to copy because in order to copy you must possess an illegal tool.

Even if DVDs and their CSS encryption become obsolete and all DVDs' copyrights expire, it would only take one person making a new DVD protected with CSS to become a heckler's veto in preventing DeCSS becoming legal and continuing to restrict access to DVDs that have entered into the public domain.

Of course, the courts will never look at the long view of what happens when an encrypted DVD becomes public domain and the tool to copy it is still illegal effectively extending the copyright forever, because such a case is "not ripe" until a CSS-protected DVD's copyright actually expires. And such a DVD is likely to expire before its copyright does anyway, and you won't have been able to make copies to prevent the loss of the data in the meantime, so never will such a case be heard.