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.

The Judge should be persuaded by

[Anonymous Coward]

Sony v. Universal [virtualrecordings.com]. If it's good enough for the Supreme Court...

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.

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.

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:.

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:circumventing protection != circumvnent copyrig

[Art Tatum]

Actually, the DMCA only makes it illegal to circumvent access protection--not copy protection. The reasoning for this was really twisted.

Originally, the copyright industry wanted a law that restricted acts of circumvention (with no distinction about what kind of circumvention it was). Defenders of fair use complained, stating that excerpts could not be made for commentary if it were impossible to copy portions of a work.

The legislature decided that protection schemes that prevented copying of material would violate the fair use doctrine and would not be specially protected by law. Instead, copyright holders would be granted legal recourse in case of a breached access protection scheme.

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.

Re:circumventing protection != circumvnent copyrig

[whoever57]

Yes, but doesn't it only protect "effective access" controls? Given that CSS can be decrypted real time by a perl script that is so short it can be written on a T-shirt, surely CSS does not qualify as "effective"?

Re:circumventing protection != circumvnent copyrig

[mark_lybarger]

ripped from:
http://dictionary.reference.com/search?q=ef fective

1. Having an intended or expected effect.

yep, how that decss is out there the css is no longer an effective access mechanism. back to school

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:circumventing protection != circumvnent copyrig

[Qzukk]

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.

Which in the case of DVDs is absolutely incorrect. CSS is a block encryption method, which means that if you copy a dvd block for block and maintain the position of a given byte on the disc, you never have to decrypt the data. There is nothing physically intrinsic to the original media that is required for decryption.

Re:circumventing protection != circumvnent copyrig

[Anonymous Coward]

If you guys REALLY want to have a mind bender the judge is mulling over the fact that the DMCA might be unconstitutional due to the fact that it denies access to works even AFTER the copywrites expire. Here [latimes.com] is the la times article on it.

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?

[Hatta]

Ah, I understand thanks. Reminds me of my favorite amendment:

9th Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Why isn't this thing used more often? Seems to me this clearly makes the war on drugs unconstitutional. In what bizarre world is control of your own biochemistry not a fundamental right? How is altering ones mind with drugs any different from altering it with religion, study, or experience? In Madison's day, when *everyone* treated themselves with alcohol, laudanum, and hemp extracts, no one could imagine the absurd situation we find ourselves in today. This is exactly what the 9th amendment was written for.

Offtopic I know. I don't really expect the government to be logical.

Re:circumventing protection != circumvnent copyrig

[the_2nd_coming]

district and circut court judges are bound by the law and the supreme court rulings. there is no ruling on the DMCA v. fair use yet from the top 9 but there is a law and based on that the judge must rule in favor of copyright holders. this case however will not be the end as an injunction to the ruling will be given while the losing party gets an appeal and then another injunction or a hold will be granted pending the acceptance of and ruling on the case by the supreme court.

Re:The Judge should be persuaded by

[iplayfast]

Unfortunately that judgement preceded the DMCA by about 15 years.

Exactly... Isn't that why they call it a precedent?

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?

DVD X Copy

[swtaarrs]

I've seen DVD X Copy at stores, and it has false claims on the box. It claims to copy the whole dvd onto one dvd-r, which is impossible for many commercial movies. Dvd-r's are single layered and only 4.7Gb(4.5 usable), but many(most?) professional movies are on double layer discs which hold twice that, therefore not fitting on a single dvd-r.

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

Movie length does not dictate size

[diatonic]

DVD's use variable bitrate MPEG-2 encoding, and even short movies can be >4.5 GB... I think it's being done as form of copy protection on commercial DVDs to sample the video at excessively high rates. I saw a single disc rip of LOTR the Two Towers that was on a DVD-R and the video looked great (it was a DVD rip from a disc submitted to the academy).

Look at movies done with Apple's iDVD (constant bitrate encoding) where 60 minutes can take an entire DVD-R.

.:diatonic:.

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.

Re:Movie length does not dictate size

[sweetooth]

I've seen that same disc and the quality wasn't that great. I believe that to be because the original DVD sent out for "Academy review" weren't the best quality though.

Re:DVD X Copy

[Doppler00]

It's actually, 7,502,247,936 bytes for FOTR.

I have yet to found an easy way to compress it. I would actually prefer to keep the quality high though, so maybe I'll just get a larger HD.

I can't seem to get any other DVD to play as a vob file very well.

Don't use DVD X Copy... Use one of these instead:

[diatonic]

There are thre software packages currently available to copy a full DVD9 disc to DVD5. All three will resample the video to fit on a single layer recordable DVD.

DVD2One [dvd2one.com] is incredible fast, and gives the option of 'Movie Only' stripping menus and extras, or 'Entire Disc'. It can process an entire 8GB DVD in about 25 minutes on my 1.4 GHz T-bird.

DVD 95 Copy [dvd95copy.net] will preseve entire disc stucture (resampling video and giving option of discarding unwanted audio) Takes about 2-3 hours to process.

Pinnacle Instant Copy [pinnaclesys.com] will also preserve entire disc. Takes about 4 hours to process disc.

Hope this helps,
.:diatonic:.

Major Omission !! This DVD9-DVD5 tool is free.

[deathcow]

And it's awesome! DVDshrink [dvdshrink.org] allows you to set the compression levels on every single extra/menu/video stream individually.

It's fast like DVD2ONE...

Guide to DVDshrink [doom9.org]

Re:Major Omission !! This DVD9-DVD5 tool is free.

[Pig Bodine]

I'll second this. DVDShrink is an amazingly wonderful program. It's fast, easy and (so far for me) stable.

Re:DVD X Copy

[Stigmata669]

Many movies that are recorded onto dual layer disks do not actually require the space for the film, but rather are recorded on dual layer disks for the inclusion of extra features and other IMHO useless bits. With the right software (i've used Dvd2One [dvd2one.com]) you can take the contents of dual layer disks and remove the extras to put a full bandwidth film on a single dvd-r, or sample down the mpeg-2 bitrate to fit a long movie on a single dvd-r.

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:DVD X Copy

[jweatherley]

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

You're right about the average Joe who bought a DVD burner not being interested in irc, p2p etc. However he isn't interested in backing up his own DVDs either - he want's to backup Blockbuster's DVDs.

Re:DVD X Copy

[Enry]

That's not my problem.

If Blockbuster wants to get CSS-encrypted movies, that's fine. But why does that mean that the movies I purchase also need to be CSS-ecrypted? Blockbuster already gets custom versions of some movies from the studios, so adding this should not be that hard.

Let the hybrid robot with the rat brain decide

[corebreech]

Probaby get a better decision that way.

Re:Let the hybrid robot with the rat brain decide

[Timesprout]

Ah yes but unfortunatly the 'memories' of the rat constitute a mental image, or copy of its programming (copyrighted of course) and so its actually illegal for the rat to think.

In view of this the DMCA plan to force the rats to listen to Michael Jackson singing Ben repeatedly until they die of depression (The researchers will of course be required to pay royalties for each playing).

Re:Let the hybrid robot with the rat brain decide

[DataPath]

Where do you think they get the rat brains from?

Re:Let the hybrid robot with the rat brain decide

[cyril3]

Don't you think a soulless industructible monster endowed with rat cunning and an instinctive fear of humans like Valance will be a little biased.

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:This is nice

[Timesprout]

eh not really. The judge has already admitted
"I am substantially persuaded by them," she told both sides.
referring to previous decisions in favour of copyright holders in similar cases.

Re:This is nice

[Anonymous Coward]

eh not really. The judge has already admitted "I am substantially persuaded by them," she told both sides. referring to previous decisions in favour of copyright holders in similar cases.

She was referring to Universal v 2600 which favored the copyright holders, and US v Elcomsoft which favored fair use.

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.

hmm

[Anonymous Coward]

Excerpt from the article:

Illston(the judge) 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.

A judge with a clue?

Re:hmm

[Guppy06]

Nah. If she had a clue, she'd know that copyrights never expire. It's heresy to even say such a thing, and I'm sure men with black helicopters and black mouse ears will be showing up soon to take her away for "questioning."

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:hmm

[IWannaBeAnAC]

My understanding of the DMCA is that the anticircumvention provisions only apply to copyrighted works. Once the copyright expires, it becomes legal to circumvent the copy protection (or more generally, s/copy protection/access control mechanism/).

I may be wrong here, the quotes in the article certainly suggest otherwise. But I think a law that prohibits breaking ANY access control mechanism is completely ridiculous. It could be interpreted as making it illegal to remove the screws holding the cover on

Re:hmm

[Qzukk]

My understanding of the DMCA is that the anticircumvention provisions only apply to copyrighted works. Once the copyright expires, it becomes legal to circumvent the copy protection

Why, you're absolutely right. The DMCA only protects copy protection which is in use to protect copyrighted materials, which means that if the DVD consortium still uses CSS to encrypt discs in 500 years, then it will STILL be illegal to watch Die Hard in Linux.

Re:hmm

[TMB]

My understanding of the DMCA is that the anticircumvention provisions only apply to copyrighted works. Once the copyright expires, it becomes legal to circumvent the copy protection (or more generally, s/copy protection/access control mechanism/).

I may be wrong here, the quotes in the article certainly suggest otherwise. But I think a law that prohibits breaking ANY access control mechanism is completely ridiculous. It could be interpreted as making it illegal to remove the screws holding the cover on

Re:hmm

[Michael Woodhams]

Judge Illston: "But it's encrypted. If it doesn't stop being encrypted, it's still encrypted,"

Sallen: It essentially makes copyright permanent. Even after expiration of copyright, the holders of original masters end up with exclusive rights. ... All encrypted, nobody has the right to circumvent to copy.

To play devil's advocate:

1) It is only illegal in the USA to circumvent the encryption. If an unencrypted copy is produced in another juristiction and then imported to the USA, the legality is purely bas

Re:hmm

[HidingMyName]

To which the DOJ could reply that after the copyright expires, whether the works are accessable is irrelavant to the law.

Interesting thought, but let me counter conjecture. Suppose that work A is encrypted with method X, and that work A's copyright expires. Your claim is that the DMCA no longer holds and that it should be safe to work on methods to circumvent A's copy protection.

However, let's now consider a realistic scenario that could occur. Suppose that before A returns to the public domain there

Possible inconsistent interpretation of the law?

[harmonics]

Amazing, one week we have solid interpretation of digital rights laws and their impact on Fair Use (Grokkster Case), and now this? I admit it isn't over yet, but some one please explain to me how the VCR is any different?

Perhaps it's just me, but the last few years has been painful to watch, perhaps my politically apathetic body needs to get into action...

Ahh hell, I live in Florida, the Mouse rules here with an white gloved iron fist!

Re:Possible inconsistent interpretation of the law

[Anonymous Coward]

one please explain to me how the VCR is any different?

Encryption and the DMCA. If DVD's weren't encrypted this wouldn't even be an issue.

Re:Possible inconsistent interpretation of the law

[RickHunter]

No, that's not the justification.

Remember back when the DMCA was being written. The content cartels were justifying it by saying that the content was digital, and thus existing copyright laws didn't apply to and/or didn't adequately protect it. Because it was digital, it was All Different and needed an entirely new set of laws.

Unfortunately for us, techies at the time agreed with them. "Hey," they thought, "copyright laws for the digital millennium, where things are All Different! Cool!" Of course, they

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."

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

Re:stupid

[aralin]

You cannot make an encrypted disk, because your DVD-R player cannot write into the track 0 to write the CSS keys. So in order to copy the DVD you have to decrypt it.

Nothing that is..

[Kwil]

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

Backups as fair use?

[angle_slam]

Allow me to play devil's advocate here. For many, the argument is that you should be able to produce a backup, in case the original gets damaged (or to prevent the original from getting damaged). If you buy a can opener and it breaks, do you expect to get another can opener for free (ignoring warranties, assume it's been 3 years since you bought the can opener)?

More relevant to the copyright law: when you buy a book, do you copy/scan every page in the book, on the off chance that your dog will eat the book

Re:Backups as fair use?

[visualight]

As someone pointed out, the dvd is "fragile". There are books that are hundreds of years old.

Do you have any 5 year old dvd's or cd's that are still in good shape? I don't, but I have books that have withstood a great deal of abuse over the last 30 years and are still good.

Re:Backups as fair use?

[Drachemorder]

"If you buy a can opener and it breaks, do you expect to get another can opener for free"

A can opener or a book is a physical item. When you buy a can opener, you're buying one can opener. You actually posses that item. This is not so with DVDs, according to the MPAA and their cronies: instead, you are buying the right to watch the movie contained in that DVD. Therefore it's reasonable to claim that this right persists regardless of what happens to the physical medium the movie is contained on.

The movie is an abstract concept (i.e. "intellectual property"); the can opener is a physical item. The two are inherently different.

Re:Backups as fair use?

[IWannaBeAnAC]

The problem is, the publishers' are trying to have their cake and eat it too.

If they really sold you the physical media, and you were free to do anything you liked with it there would be no problem. (Of course, subject to existing laws, like you are not allowed to hit someone over the head with it and kill them, you are not allowed to violate copyright and sell copies of it, etc etc etc)

But, software publishers especially, (but even book publishers) try to apply additional restrictions, to the point that you don't actually own the physical media anymore, you are instead "licenced" to make use of the product for some period of time. In this scenario, the phyical media is actually irrelevant, it makes no difference at all whether it came from a CD "bought" at the local store or downloaded from the internet. If the CD gets scratched or you accidentally erase your harddrive, it does not affect your licence to use the content. That is, if you can obtain the content from some other source, you are free to use it. Thus, forcing people to pay the full cost of an additional licence just to get a copy of something they already had a licence to use anyway is double-dipping (especially when it is a download with a marginal cost of zero). An analogy would be, if you lost your driver's licence, instead of just charging some nominal fee for the replacement of the card, charging the full cost of a new driver's licence (or even making you do the test again).

Now, I don't necessarily agree with this model at all, but just stating how (some people think) it works.

I believe it is quite legal to copy or scan every page of a book, as long as you do not distribute the copy. I might be wrong though. It doesn't matter much because that is completely unenforcable anyway. But I think DVD's are different in this respect.

Re:Backups as fair use?

[gl4ss]

well. the analogy makes more sense in places like here where getting the drivers license in the first place can cost over 1000$.

replacement is just a nominal fee of reproducing the card.

Re:Backups as fair use?

[Bagheera]

If you buy a can opener and it breaks, do you expect to get another can opener for free (ignoring warranties, assume it's been 3 years since you bought the can opener)?

Different animals. When you buy a 'device' you are buying the DEVICE. When you buy a DVD (Or CD or VHS Tape or Phillips Cassette or Vinyl record) you are buying a License to play the media and experience whatever is on it. The media itself is secondary to the License.

Since the price of the Media is pennies, I would say YES. If you (an

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

Re:when will they understand

[glwtta]

and to slow incompetent pirates

Well, I wouldn't go that far. I can't help but suspect that the line between the two is blurred on purpose - after all, no one can argue that copyright protection is bad thing, right?

Re:when will they understand

[IWannaBeAnAC]

Weeeell, back in the old days, when copyright law was invented, copyright protection was not really a bad thing because it affected practically nobody (since so few people had a printing press), while benefitting practically everybody.

Nowdays, digital copyright protection affects practically everybody (since practically everyone has access to a digital computer of some form), while benefitting practically nobody (the 0.0001% of society that are RIAA executives, and to a lesser extent, authors).

Now, prot

Re:when will they understand

[glwtta]

Lets not get carried away here, the copyright system is not nearly as fucked at the moment as, for example, the patent system. Copyright is working perfectly well for print media, software, etc., just because ??AA are trying their hardest to abuse it to save their doomed business model doesn't make the concept of copyright itself a bad thing.

You know, kinda like P2P networks aren't really responsible for people abusing them ;)

Re:when will they understand

[petecarlson]

copy protection is the snake oil used to prevent fair use and to slow incompetent pirates

The DMCA is legal protection of copy protection
Brings up an interesting point. What is the intent of the DMCA? If the intent is to stop the copying of copyrighted works, why go through trouble of making an additional law? If the DMCA is enforced, there can be no legal copying of any protected work. No fair use etc... Why not just ditch fair use and say that any copying of a copyrighted work is illegal?

Can't be!

[nightcrawler77]

"A copyright holder has no right to prevent someone from engaging in fair use," Durie said, noting that the studios' position would prevent students from excerpting film clips for school projects or parents making backups of their work. "That, I would suggest, can't be right. That can't be what the drafters of the DMCA intended."

Yeah. There's no way that's what they intended...what's that? The MPAA wrote what?? Ahhhhh!!!

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.

Copyright never expires now

[beldraen]

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.

I had never thought of this before. Think about it: 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. Maybe I'm the only one who just caught this, but it seems no one has explicitly stated it this way.

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 convenie

Re:Copyright never expires now

[ewhenn]

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?

The DVD player is not intended to bypass copyright, simply play the contents of the disk on your TV screen.

Re:Copyright never expires now

[Jeremi]

The DVD player is not intended to bypass copyright, simply play the contents of the disk on your TV screen.

True, but according to the RIAA, intent isn't what matters, it's ability. The software in this case is not intended to enable piracy, either.

Re:Copyright never expires now

[smiff]

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.

It's not a "decrypting ban", it is a ban on circumvention devices. DVD writers will not let you make a bit-for-bit copy of a copy-protected DVD unless you circumvent the device.

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?

Y

Re:Copyright never expires now

[eyegone]

I think this is taking things beyond the realm of rationality, if not the law. Encryption without some means of decryption just doesn't make too much sense. Otherwise I could just write some random characters down, and say it the encrypted version of Moby Dick.

Sorry. I just patented that business model.

Re:Copyright never expires now

[Speare]

This argument was one of many which I foresaw and noted in my anti-SSSCA letter of a few years ago. The language of that proposal was "copyrighted or protected works", which essentially killed the whole concept of lapsing copyright.

yah right!

[Anonymous Coward]

OK, so I bought hundreds of records in the 80's and I confined them to the dustbin (or lost them) when CD's became mainstream. Do you really expect me to pay once for tape, again for vinyl, again for CD's, and again for your next format, and the next... ?
The same for the MPAA! I bought a DVD and it developed a crack not through my own fault of abuse. I sent it back to the 'house' that produced it and never received a response.
Oh my question: When we buy a CD or a DVD what exactly are we buying ? (rights to view/listen ? a piece of plastic ? rights to put on another medium ?)

My answer: The right to spend money so these greedy assholes can get million dollar salaries, never answer questions, and buy lawyers!

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.

Intelligent Attorney

[Duckman5]

"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.

The studios seem to have some real bright cookies representing them. Isn't 321 Studios selling circumvention devices. You know, something used to get around the encryption. This may be a bit nit-picky, but i thought you were supposed to have a firm grasp of the English language before going to law school.

Re:Intelligent Attorney

[petecarlson]

i thought you were supposed to have a firm grasp of the English language before going to law school.
And after going to law school you are supposed to be able to twist the English language any way you want.

This judge clearly gets it.

[sbwoodside]

I also liked the comment by the defence lawyer:

"That, I would suggest, can't be right. That can't be what the drafters of the DMCA intended."

Well, I agree, that can't be right. The question was about students taking excerpts from movies. Well, obviously it can't be right to ban that. But I think it probably was what the drafters of the DMCA wanted. It's nice rhetoric to claim that the drafters of the DMCA didn't mean to impinge on fair use, but they probably did.

simon

Re:This judge clearly gets it.

[clonebarkins]

It's nice rhetoric to claim that the drafters of the DMCA didn't mean to impinge on fair use, but they probably did.

Seeing as the MPAA wrote the legislation to begin with, I'd say you're probably right.

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:This is great...

[tres3]

What exactly is an ANTIcircumvention device?
An armour condom. No wait, that would be an anti-circumcision device. Nevermind.

the way I look at it

[toddhunter]

If they sell me a DVD or CD, I'll do whatever I want to do with it. If I want to copy it, I will, If I want to crack the copy-protection, I will. If I want to sit around the house using them as frisbees I'll bloody well do that too. If they don't like it, then stop selling me DVD's and CD's. Make it impossible to 'buy' them, and start a renting agreement. Then fair enough, I'll pay my money, agree to the temporary license and leave it at that. So stop prenteding you are not selling me something. if you do, then it is mine.

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?

You have been lured to the SIDESHOW!

[Tiger Smile]

Welcome to the sideshow! Here you are argue that the DMCA does, or does not allow fair use as it existed before the DMCA.

Avoid the Sideshow. Vote. Forget this arguement. The people who passed the DMCA need to go. Do something other than letting your butt get bigger reading postings and eating hohos. Write a letter.

If you don't like it like I do, take action. Don't wait for someone to save your rights like the EFF. Help them, by donating money, time, and help yourself by writing and calling.

For God's sake please don't complain unless you are willing to do something. I hope that everyone here who cliams to have some passion about this issue is willing to do something. If that is so we'll have no trouble making our opinions known.

PS: Sorry, about the butt...errr...crack earilier in my post. :)

-- James Dornan

The problem with outlawing a DVD copier

[Kjella]

is that you can split it into two programs. A DVD player, and a screen capture utility, which are both perfectly legal. Of course that would require a reencode, but that is what happens on 4,7gb+ movies anyway.

Kjella

Too late!

[Snover]

Seeing as how they've already started SELLING this software, there's no WAY this is going to do anything other than stop the flow of income into 321 Studios, unless they shut down P2P networks, which have already been ruled in court (Grokster) as non-copyright-infringing [crblaw.com] and therefore cannot be (legally) removed (if at all).

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:Too late!

[clonebarkins]

unless they shut down P2P networks, which have already been ruled in court (Grokster) as non-copyright-infringing

Not quite. It's been ruled that the software used to create these networks has significant uses that are non-infringing, and that the software maker cannot reasonably held liable for infringement of copyright perpetuated by software users.

Having said that, I agree with what (I think) your point is--to wit, that DVD copying should be legitimate, legal, and fair in many instances.

Shouldn't they write better copy-protection then?

[grolschie]

I mean, they are probably just miffed that their lousy copy protection doesn't work. Instead of ensuring their system is robust and bullet proof, they winge in court that anybody can circumvent it. This should really be seen by them as embarrassing.

Alternative for the software manufacturers:
Perhaps if the DVD copying software uses the libdvdcss stuff, then it should instead of including it in the package, have a script that will download it from some unnamed country in eastern europe, much like how some Li

Question on CSS and Patents

[clonebarkins]

First, is CSS patented? I mean, it's gotta either be patented or be in the public domain, right? Is there another choice I'm missing?

Anyway, assuming it is patented, then the patent is up in 20 years, right? So, once the patent is up, who can legally argue that you broke the decryption?

Just some thoughts.

Missed point: Excerpts = full copy

[inimicus]

But he added that Ebert has no more of a right to make full copies of a movie than anyone else.

Ummm... OK. The implication is that he (and thus anyone else) does have the right to make excerpts, right? Which part of the DVD in question is unencrypted to facilitate this? The part that the studios want to have excerpted, or the part that the individual wants to excerpt?

Re:Looking Ahead...

[Anonymous Coward]

comic book guy voice

Worst analogy ever

Re:Looking Ahead...

[ewhenn]

I agree, very well put.

You just don't get it

[spitzak]

Information "wants to be free" in the same way that an electron "wants to be in the lowest energy orbit". Get it?

Of course the electron is not thinking and weighing the options and deciding. And you (not the electron) could very well want that electron in a different orbit, and you could make it do that by applying enough force and energy, but this still has no effect on the fact that the electron "wants" to be in the lowest orbit.

Same thing with information. It should be obvious that without government

No, *you* just don't get it...

[0rbit4l]

Information only wants to be as free as I want to make it. This is a glass half empty/glass half full argument and is philosophical, not scientific. Trying to claim it as a scientific argument is a fallacious distraction. You see information as fundamentally free. I claim that information isn't anything (free or otherwise) without its creator - the creator, if they so choose (with no magic DMCA laws or anything like that) can simply withhold it if they want to. The information doesn't "want" to pop out

Re:No, *you* just don't get it...

[spitzak]

I perfectly understand that a person who possesses some information and does not want others to have it can prevent it by not telling the information to anybody. But information itself is naturally free. Imagine if you did not exist, but the information did, ie it was written down. Now perhaps nobody can see it written down, but in that case it's exactly the same as if the information did not exist. So let's assumme some person can see it. What exactly in nature prevents that person from copying it? The ans

Re:copyright holders???

[tres3]

Probably not. It was most probably a work for hire commissioned by the DVD-CSS [dvdcca.org]. They then own the copyright for that work and it is most definitely in their interest that it not be sold but licensed and only to a select few.

If you are talking about an individual that wrote a program that copies DVDs then, according to the DMCA (a law that I despise), he is a criminal. That's like saying that Xerox has a right to sell a product that is designed to remove the binding from a book and copy it 'en masse. I

Re:'Mulled' over the decision

[Adam9]

Yeah yeah, the same people who get 'pregnant' after eating a huge meal ;)

-547, Flamebait

Doesn't matter

[Quila]

The DVD recorder has substantial non-infringing use so nobody argues that they are not legal.

Even if it is 100% non-infringing use, it still violates the anti-circumvention clause of the DMCA.

Luckily, the judge seems to be realizing that that clause doesn't quite fall in line with all other copyright law and precedence.

Re:Substantial noninfringing use

[clonebarkins]

On the other hand, how do you show that breaking CSS has substantial non-infringing use?

Long term: Someday, presumably (yes, I'm making a big assumption), all the crap Hollywood puts out on DVD now will be in the public domain, at which point if it is still illegal to break CSS, then it will essentially be illegal to access public domain materials! (Actually, this could potentially happen now as well.)

Short term: You're assuming that somebody is recording DVD-2-DVD -- however, it may be that I do not

Re:Judge sees the conflict with fair use

[mark-t]

She asks questions like whether the DMCA prevents copyrighted works from *ever* entering the public domain, which it, of course, does

Indeed. If a person who once held a copyright on an encrypted work ever specifically chose to relinquish it, and put the work into the public domain, he or she is unable to release the information or utilities it would take to break the encryption on already existing materials, since said facilities could also be used to break encryption on other works which are still copyrighted and protected. Effectively, the DMCA takes ownership of a copyright away from what should have been the copyright holder and instead puts it in the hands of the corporation whose encryption technology was employed, unless the copyright owner explicitly makes a decision to *NOT* use any encryption in the first place.

The question is, can this sort of opening in the DMCA be exploited to make the act self-destruct?