Using The DMCA And DRM To Prevent Innovation

from the not-quite-what-it's-supposed-to-do dept

Earlier this year, we wrote about the bizarre story of how the entertainment industry could misuse the law to effectively ban DVD copying -- even when it's allowed by fair use. It involves a bit of sneaky lawyering, but here's how it works: the group that creates the DVD spec could just create a new spec that would ban any product from making DVD copies. Since the DVD spec includes a totally pointless bit of DRM known as CSS which has been broken for ages, anyone who makes any copies without licensing the spec, has then violated the DMCA's anti-circumvention clause -- even if the use was perfectly fair. The specific case where this applies was with a $20,000 DVD jukebox that would make copies and store your DVDs on a hard drive. It had all sorts of copy protection built in itself, so it was clearly not a tool for unauthorized use. A court agreed that it was perfectly legal.

However, for some bizarre reason, the movie industry fears this perfectly legal jukebox and has resolved to kill it. Since the law isn't on its side, it's getting around the ruling by using the DMCA to its advantage. It's made an amendment to the DVD standard that effectively makes it impossible for a company to allow DVDs to be copied. Thus, even though the law is clear that it's perfectly legal to make a personal copy of a DVD, the makers of the DVD standard (the movie studios) are now saying that you can't license the necessary standard to playback movies unless you don't allow any copying -- and if you do so anyway, you are circumventing the DRM and therefore violating the DMCA. In other words, rather than protecting copyrights, the movie industry is using the DMCA and DRM to define what's acceptable innovation in terms of how a DVD jukebox can work.


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  •  
    identicon
    Anonymous Coward, Nov 7th, 2007 @ 9:19am

    Legal Copy

    Where is there a law or published document that says "it's perfectly legal to make a personal copy of a DVD"?

    Please understand, I all for making legal copies of my DVD's, and if there is such a law or right, then how come nobody has sued the record or movie companies, or the DMCA author's that by doing anything to prevent our "right" to make a copy is unlawful, thus unenforceable by law if it conflicts with out "right"?

    Meaning, how can we have the right to make a copy, but then have no "legal" way to do so???

     

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    PaulT (profile), Nov 7th, 2007 @ 9:27am

    re: Legal Copy

    Why are these types of comments always anonymous?

    Anyway, to poster #1 - US law states that it is legal to make a copy of a DVD under 'fair use' guidelines. So, for example, it's legal to make a backup copy of a DVD or rip it to an iPod, but not legal to redistribute that copy.

    With the DMCA, the industry are trying to block technology that allows any copy-making whatsoever, regardless of whether they are fair use copies or not. So, with changes like those mentioned in the article, we're left with the right to make copies, but no company has the right to give you the tools to do so.

    I've said it before, I'll say it again - this is the type of move that's killing the industry. God knows, I wouldn't have bought anywhere near as many DVDs as I have if CSS and region coding weren't laughably weak (I import many DVDs and playback on Linux). I'm not upgrading to HD until the industry stops trying to block me from playing my legal content either.

     

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      TheDock22, Nov 7th, 2007 @ 9:59am

      Re: re: Legal Copy

      US law states that it is legal to make a copy of a DVD under 'fair use' guidelines. So, for example, it's legal to make a backup copy of a DVD or rip it to an iPod, but not legal to redistribute that copy.

      Exactly, but with this new bit of law it is still legal to MAKE the backup, but may be illegal to WATCH that backup. That is what I get out of it. Any ideas?

       

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    Thom, Nov 7th, 2007 @ 9:50am

    Carousel player

    So I have to ask, is Sony selling 300 disc carousel DVD changers? I know they used to sell 300 disc CD changers in the $250-$350 price range because I bought one in 2000.

    Seems to me that, if Sony and others were to innovate and create nice, full featured, carousel DVD players, then they'd 1) Avoid all the lawyer fees and bad publicity 2) Eliminate this company by selling a good alternative at a fraction of the cost 3) Make money selling DVD changers 4) Promote the purchase of many of their movies on DVD.

    On top of that they'd eliminate a few of the reasons for copying DVDs. My CDs have been in use for 7 years and you can't tell they aren't new. No scratches, no scuffs, and only touched once or twice...

    Stupid Sony (and others)... really stupid.

     

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    Thom, Nov 7th, 2007 @ 10:02am

    Oh, they do

    Ok, so Sony does sell 400 disc mega changers for $400-$800. Are they that bad that someone can sell $20,000 alternatives that serve the same purpose but burn copies to a hard drive instead of holding the discs? I don't agree with the studio's tactics nor their views but I don't think too many people are spending an extra $19,500 just to thumb their nose at the studios on copying, nor to save 4-5 inches in their entertainment center.

     

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      Anonymous Coward, Nov 7th, 2007 @ 10:07am

      Re: Oh, they do

      You guys dont get it. You use these devices to copy discs you rent or borrow. Sure, theyre locked down and can't get moved off the device very well, but thats one less copy of the movie that the studio sold, because you now have it forever just from a rental.

      The less wealthy of us do this by manually dvdripping.

       

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    Anonymous Coward, Nov 7th, 2007 @ 10:06am

    The morons at the movies/disc/etc companies are just running out of ideas... since everyone and everything is against them and telling them to go out and buy a brain. Give them another year and see what ridiculous new ways they try to adapt to themselves. And then just wait until they sue someone, and lose yet again.

    Pathetic.

     

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    barrenwaste, Nov 7th, 2007 @ 10:09am

    shooting themselves in the foot

    This is a classic example of why large corporations (or companies) shouldn't be allowed a stable of lawyers. They tie up our courts with lawsuits and litigation that are obviously rediculous and are heard solely on the basis of how much money the corporation is willing to throw at the problem. This one should have been looked over, laughed at, burned, and resulted with the corporation getting hit with a contempt fine. It's clear to me, at least, that these corporate entities hold our judicial system in contempt and I have lost all respect I may have had for them.

     

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    Anonymous Coward, Nov 7th, 2007 @ 10:21am

    To #7.

    Anyone could get a free book from a library and photo copy it or scan it. But what's the point in that?

    Perhaps if the movie industry concentrated on making DVD ownership more valuable, rather than more restrictive and less valuable, then more people would purchase more videos.

     

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    GrammarMan, Nov 7th, 2007 @ 10:22am

    "anyone who makes makes any copies without licensing the spec..."
    makes makes?

     

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    mt, Nov 7th, 2007 @ 10:22am

    Don't tell the RIAA about this....

    The RIAA might want to rewrite the CD spec so that music CD copies are illegal too.

     

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    Griffon, Nov 7th, 2007 @ 10:25am

    right allows not forces them to allow

    So #1, the fair use right allows you to make the copy. It dose not force the IP owners in anyway to allow you to make the copy, if you follow... You have the right to walk across the grass, but they can still put a fence around it, then arrest you for going over or around the fence, even though walking across the grass is ok (bad metaphor though). The point being a right dose not equal a law to allow.

    This new tactic to circumvent consumer rights is just down right sleazy... I wonder how it will get challenged, or even if it can be.

     

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      Wolfger, Nov 7th, 2007 @ 12:34pm

      Re: right allows not forces them to allow

      Griffon:
      So... you have the right to breathe air, but you think it's legitimate if I take all the air away and lock it up, preventing you from breathing it?

      Your grass analogy is bad, because you *don't* have the right to walk across somebody else's grass, except in cases of a public easement (I think I'm using the wrong legal term, but bear with me), and once a public easement has been established, the courts have ruled that the owner of the property MAY NOT erect a fence preventing use of that easement. There have been many cases of this in Michigan where people use a path along private property to access a water front.

       

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    4-80-sicks, Nov 7th, 2007 @ 10:27am

    Re: Legal Copy #1

    Where is there a law or published document that says "it's perfectly legal to make a personal copy of a DVD"?
    Laws are not written in the vernacular. That doesn't mean we should only use their language when speaking of them. But the rule you seek is called Fair Use. It distinguishes based on, among other factors, "the effect of the use upon the potential market for or value of the copyrighted work." If I have already purchased one copy of a movie, and I wish to make a copy for non-commercial use (without intent to sell either the original or the copy), that does not affect the market. This of course does not apply to making a copy of rented material.

    source: http://www.copyright.gov/fls/fl102.html

     

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    Benji, Nov 7th, 2007 @ 10:46am

    Consumer Right

    I thought that a "Right" is something that no one can take away. Even if it's illegal to break CSS, our consumer right is of higher priority than the conflicting law.

     

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      Wolfger, Nov 7th, 2007 @ 12:28pm

      Re: Consumer Right

      Benji, I hate to break it to you, but you are deluded. "Rights" are things we have to continually fight for, or people *will* take them away. It is the way the human race operates. We look in disdain on the days of "might makes right", but honestly all we've done is put make-up on that ugly pig. Rights are doled out (and taken away) by the government, which rules by force. The force is most commonly applied in the form of lawyers, fines, and possibly jail, but those things are only effective because they are, in fact, backed up by the very real threat of physical (and sometimes lethal) force. So the next time you think there's any such thing as "[a right] that no one can take away", think again.

       

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    TheDock22, Nov 7th, 2007 @ 10:46am

    An idea

    If all they are worried about is losing a sale from rentals, why not just give rentals stores a copy that is the movie only (no bonus material) with some unskippable ads at the beginning. This will likely discourage people from copying, and the ones that do would probably not have bought the dvd anyway. Win-Win in my opinion.

     

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    I like Mike, Nov 7th, 2007 @ 10:50am

    Who cares?

    This tactic, like all the others the RIAA has tried is doomed to failure. All they have done is create a market for bootleg software and devices that circumvent the DRM. They persist in the notion that making consumption of their product more difficult for the customer preserves profits. That may be the case for the short term but in the longer term the market will dictate the terms of consumption.

    You are hearing the last gasps of a dying business model. When the studios and labels start hemorrhaging money because they failed to adapt to the new paradigm the old boys club will get booted out and new blood (and ideas) will be brought in to make changes.

     

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    zcat, Nov 7th, 2007 @ 11:08am

    sad

    In New Zealand there is no legal right to make personal copies (there's an exemption for software only). OTOH region coding is an illegal restraint of trade under our consumer protection laws, and a fair amount of Microsoft's EULA doesn't apply here either.

    No worries though, at some point the NZ government is going to 'harmonize' our IP laws in order to get a free trade agreement with the USA, which will probably involve us implementing a DMCA-style law, enforcing software patents, and scrapping most of our consumer protection laws. And at some point you guys will lose all rights to personal copying, just so everything is "consistent" in all countries.

    I hate politicians.

     

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    Anonymous Coward, Nov 7th, 2007 @ 11:12am

    To #2:

    "we're left with the right to make copies, but no company has the right to give you the tools to do so."

    Thats my point, if we have the right to make a personal copy, but something was created to prevent us from excercising that right, why hasn't anyone sued the makers of the thing that is making it impossible to excerise our right?

     

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  •  

    Say Goodbye

    The studios and music industry have decided to fight instead of embrace the will of the people and the market. Ignoring fair use and trying to block what is legal is...illegal.

    I see the downfall of this industry as it is now in the coming future, so I say goodbye and good riddance.

     

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    James (profile), Nov 7th, 2007 @ 1:26pm

    "Anyway, to poster #1 - US law states that it is legal to make a copy of a DVD under 'fair use' guidelines. So, for example, it's legal to make a backup copy of a DVD or rip it to an iPod, but not legal to redistribute that copy."

    Wrong. US law does not state that it is legal to make a copy. "Fair Use" is a reasonable defense against the copy right law. Since it has been successfully used for years as a defense it is the "law of the land" so to speak but not a law in its own right.

     

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    Overcast, Nov 7th, 2007 @ 1:28pm

    You know - if I bought something cool like that - I'd have to go out and buy DVD's just to build up the collection on that little gem...

    They are so shallow and narrow minded it's insane.

    A combo unit - that functioned as a Stereo and DVD player would simply rock. How much more use could I get out of something like that?

    But, alas - I'm stuck with the hassle of changing out DVD's manually. Or... wait... maybe I'll just watch cable or find something else to do.

    And what difference does it make if I use it to make copies of rental DVD's? If you get Netflix or Blockbuster's copy cat service - you can just rent at will anyway. I rented a few movies last week, and I wouldn't have copied any of them to the jukebox, nor would I buy them - they weren't good enough for me to buy a hard copy of, or even rent again. If I want to watch it 15 times, I can just get the movie again or simply keep it for a few extra days, or buy it. I don't consider a 'digital copy' a permanent copy... I know hard drives die sometimes..

    It just ends up waisting gas and time... Neither of which, I really care to burn.

    And I thought Hollywood was a 'Champion of Environmental causes', but alas - it seems they want me to burn more gas going up to the movie store.

    However, I rented a movie last night - and I plan on buying it. It's an older movie - just hadn't had the occasion to watch it before... but you know - if I would have, I would have bought it sooner.

    While these tactics sicken me to no end, I do still buy a few movies here and there... I'd buy far more if I was able to use technology to it's fullest, instead of being inconvenienced by the Entertainment industry's obsessive paranoia. Because in the end - that's all I see it as. I don't see it as protecting their rights, I see it as a pain and a limit on what I really 'purchased'. It's like I only purchased half a product. I don't really desire to deal with their politics and issues, I simply want to use available technology to enhance my entertainment experience. I have no issues buying movies I really enjoy, at all. I just can't see buying half a product... really.. it's not appealing.

    It's like buying a car and only being able to drive it to and from work. Well.. I may as well stick with the old one.

    Once again - the decision of me buying a movie has ZERO to do with it's free availability. It's ALL about the quality of the movie. If I really like a movie, I want a original hard copy of it - Jukebox or no Jukebox, free web video or no free web video. And I know MANY people who think this way too.

    The Entertainment Industry's profits are down - not because of media availability, but because of Media quality. The last two movies I bought - were both made prior to 2000.

     

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    Jim, Nov 7th, 2007 @ 2:25pm

    RE: Re: right allows not forces them to allow

    @21. Another poor analogy.

    You have the right to free speech. You do not, however, have the right to speak whenever you please. You may not walk into a courtroom for instance and freely speak your mind for instance.

    You presumably have the right to make Fair Use copies of DVDs. The DVD makers have no obligation to make that easy for you.

    As as aside, I don't care if it is Blue Ray, HDDVD, a DVD, or streaming internet video... if it can be played on a monitor, it must make its final leg in a known standard and therefore can be ripped - maybe not at 24x - but any attempts at obscuration are ultimately a waste of time.

    jgo

     

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