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321 Studios Plays It Safe Against the DMCA

Posted by timothy on from the dispensation-nation dept.

mblase writes: "CNet reports on a request by 321 Studios to have it legally declared that their DVD Copy Plus software doesn't violate the DCMA. DVD Copy Plus works on a Windows PC by copying DVD video to a recordable CD in VCD or similar format. If successful, this could be a major legal weapon against the DCMA in the future. 321 Studios' press release is here."

26 of 241 comments (clear)

  1. And what about the DMCA by mocm · · Score: 5, Funny

    It's not Digital Copyright Millennium Act (although it may feel like it).
    It's Digital Millennium Copyright Act.

    --
    ***Quis custodiet ipsos custodes***
  2. Accept DMCA? by debrain · · Score: 5, Insightful

    In a way, the success of this plea would endanger the fight against DMCA et al., by providing enough fair use to make the law as a whole acceptable to this company, other companies, and perhaps even many consumers. If this agreement is unilaterally struck down, then there is another entity out there who wills the end of the DMCA content control.

    Indeed, winning this court case may be a tool to fight for fair use in a world of DMCA, but in the overall war we will sacrifice a valuable ally in the fight for a world without DMCA.

    I would rather a post DMCA era, where freedom is presumed until proven a crime, rather than feel the need to prove my freedom for actions of thought and speech now considered criminal.

    1. Re:Accept DMCA? by fishebulb · · Score: 3, Insightful

      the problem is that it does interfere, the law makes little distinction between fair use and piracy.

      On the RIAA website it states that they dont mind of if people make a copy of a CD for their car. And in fact they state it is fair use to do this. Ahh, but there is a problem now, with copy protected CD's, i cannot legally make a copy now, because i cannot break the copy protection. And more importantly it is illegal for someone to make a program that will allow this.

      This law does nothing but maybe hike up the penalties for the real pirates (large scale manufactures) They are already breaking laws by making cds, then selling them.

      Granted 321 studios may declare that this doesnt break the DMCA, but a tool to allow for even playing music cds on the computer could (the copy protected ones). This is only stating that their utility is legal, not utilities that are similar

    2. Re:Accept DMCA? by VFVTHUNTER · · Score: 3, Informative

      This technology / method does NOT have ANYTHING to do with fair use!

      Yes it does

      Since when does creating a backup copy of licensed material qualify as Fair Use? It doesn't. It never has. It probably never will.

      From the above page:
      ...the fair use doctrine allows an individual to make a copy of their lawfully obtained copyrighted work for their own personal use. Allowing people to make a copy of copyrighted music for their personal use provides for enhanced consumer convenience through legitimate and lawful copying. It can also enlarge the exploitable market for the rights holders. The fair use privilege's personal use right is what allows an individual to make a backup copy of their computer software as an essential defense against future media failure.

      Get your terms straight and maybe people will actually address the issues that you feel strongly about.

      Whatever you say, Hiliary. I hope you paid for all those KD Lang CD's :)

    3. Re:Accept DMCA? by MindStalker · · Score: 4, Informative
      Legal definition of fair use
      a use of copyrighted material that does not constitute an infringement of the copyright provided the use is fair and reasonable and does not substantially impair the value of the work or the profits expected from it by its owner


      As you are allowed to make backup copies for yourself (this has been deemed legal by the courts) and backup copies for yourself do not hurt the profits of the owner, it IS fair use. Stop trolling, please.

      findlaw dictionary

      the actual law, which doesn't really define it, as definition has been left up to the court (the findlaw def is current court def) but states that you can't be prosecuted for it especially if its non commerical in nature

  3. Here's the text in case of Slashdotting... by Anonymous Coward · · Score: 3, Informative

    321 Studios Files Complaint against Nine Major Movie Production Companies Seeking Right To Sell DVD Copying Software
    Groundbreaking Suit Attacks Constitutionality of Digital Millennium Copyright Act

    BERKELEY, CA (April 23, 2002) - 321 Studios today filed a complaint in U.S. District Court against nine major motion picture production companies in an effort to thwart industry threats to stop the sale of the firm's DVD Copy Plus software for making backup copies of DVDs. The complaint, filed in the Northern District of California, challenges the constitutionality of the Digital Millennium Copyright Act (DMCA) that was passed in 1998 to address the issue of copyright protection for digital content.

    Citing 321 Studios' free speech rights under the First Amendment, the complaint asks the court to rule that the sale of DVD Copy Plus does not violate key provisions of the DMCA or unlawfully aid consumers in infringing copyright privileges associated with material stored in the DVD format. The suit seeks a declaratory judgment that will permit 321 Studios to continue to sell DVD Copy Plus. No damages are sought.

    The complaint names MGM Studios, Tristar Pictures, Columbia Pictures, Sony Pictures Entertainment, Time Warner Entertainment, Disney Enterprises, Universal City Studios, The Saul Zaentz Company and Pixar Corporation as defendants. It alleges that the movie studios, acting in part under the auspices of the Motion Picture Association of America, have threatened to sue 321 Studios and claim that the sale of DVD Copy Plus is illegal under the DMCA.

    "We see this as a groundbreaking case with implications that extend to all kinds of digital content," said Daralyn J. Durie, a partner with Keker & Van Nest, LLP, of San Francisco, which is representing 321 Studios in the case. "We believe that there are substantial constitutional problems with the Digital Millennium Copyright Act, not the least of which is barring consumers from exercising their right to make backup copies of DVDs they own. This is one of the first cases asking the court to rule on the crucial question of how this law impacts those rights."

    "DVDs are notoriously susceptible to scratches, heat damage, loss and other problems, and our DVD Copy Plus software enables legal owners of DVD movies to protect their DVD investments by making legitimate backup or duplicate copies for their own use. In our mind, this is no different than making an extra personal copy of a music CD, which is perfectly legal," said Robert Moore, President of 321 Studios. "We decided to
    proactively file this lawsuit not only to receive the courts' assurance that we are in compliance with the law but also to raise the broader question of how Americans' First Amendment rights can be protected in this digital age."

    Information on DVD Copy Plus, a copy of the legal complaint, and a petition enabling consumers to voice their support for 321 Studios' position on the Digital Millennium Copyright Act can be found at http://www.321studios.com. 321 Studios is based in St. Louis, Missouri, with offices in Berkeley, California, and Wilmington, Delaware.

  4. "Is perfectly legal" by AndyChrist · · Score: 5, Interesting

    I think the difference between copying a DVD and an audio CD is there is nothing on a CD which was INTENDED to prevent it's copying, except for those new crippled ones.

    They have to be circumventing that, therefore they are violating the DMCA. Not terribly hard to understand. (Well, the fact that they are violating a law which is on some levels hard to understand isn't.)

    IANAL

  5. Tough fight for 321Studio by DragonPup · · Score: 3, Insightful

    Breaking DVD encryption is already a DMCA violation in the 2600 case if I recall. And if the product breaks the DVD encryption, it violates the DMCA by a set precadent. Keep in mind, I have no problem backing up DVDs for personal use that is allowed under Fair Use(and I hate warez kiddies), but 321 has it's work cut out for them :-(

    -Henry

    --
    "Useless organic meatbag" -HK-47
    1. Re:Tough fight for 321Studio by Jim+Tyre · · Score: 3, Informative
      Breaking DVD encryption is already a DMCA violation in the 2600 case if I recall. And if the product breaks the DVD encryption, it violates the DMCA by a set precadent. Keep in mind, I have no problem backing up DVDs for personal use that is allowed under Fair Use(and I hate warez kiddies), but 321 has it's work cut out for them :-(

      One thing to consider, for those who just can't get enough of the legal system, is that the 2600 case was in federal court in New York, with the appeal to the Second U.S. Circuit Court of Appeals. The new case is in federal court in San Francisco, and if there is an appeal, it will go to the Ninth U.S. Circuit Court of Appeals.

      Rulings from one federal circuit are not binding on either trial or appellate courts in other circuits. The court(s) in the 321 Studios case may or may not be influenced by the rulings in the 2600 case, but they are not bound by them.

    2. Re:Tough fight for 321Studio by GMFTatsujin · · Score: 5, Interesting

      It doesn't break the encryption per se - it probably relies on the encryption being there in the first place just to get the player to play the DVD. The CCS encryption exists on a DVD to thwart non-licensed players from working, not to prevent copying. You can make a DVD player, but it won't work on a protected DVD unless you get the license to use the decryption key.

      Don't make the mistake of thinking that the CCS encytion is there to keep pirates from copying the DVD. You can copy a protected DVD till the cows come home without even worrying about the encryption. The point of it is to sew up the *hardware* side of the business model.

      This product would, however, fail to *preserve* the encryption in the backed-up VCD version, since VCDs don't need to pass an authentication to play.

      Just a distinction - does the DMCA apply if the encryption in question is intended for a use other than to prevent copying the medium?

      GMFTatsujin

    3. Re:Tough fight for 321Studio by gorilla · · Score: 3, Informative
      Rulings from one federal circuit are not binding on either trial or appellate courts in other circuits. The court(s) in the 321 Studios case may or may not be influenced by the rulings in the 2600 case, but they are not bound by them.

      However, when there are conflicting rulings in different circuits, this is when the supreme court is most likely to take an appeal, to set a precedent which is binding in other circuits.

  6. DVD to VCD by AKAJack · · Score: 5, Interesting

    I wonder if the studios will use the defence that the software "changes" and degrades the original movie on the DVD and therefore is not a backup or copy of the original, but something that degrades the value of their trademark/copyright by creating a less than pristine copy of the movie and deceives the consumer into thinking they're making an exact backup?

    I've seen some pretty crappy VCDs and some pretty good ones, but none of them look like DVDs to me.

    I would expect the studios to explore all angles.

  7. The Enemy of My Enemy is.... by GeekLife.com · · Score: 3, Insightful

    So, 321 Studios is against the DMCA. Hooray, right? Except, they're most likely the exact same companies filling up our inboxes with unsolicited useless spam every day, costing us bandwidth and time.

    So, do we like them or hate them?

    I guess I'll wait for the next slashback to tell me.

  8. VCD is not very good by interstellar_donkey · · Score: 3, Interesting

    I have a lot of DVDs. I have a good A/V system. After seeing the quality of VCD, I'd never make a copy of a DVD onto that format.

    I would like to be able to copy the DVDs I own just to have a backup, and personally I think there is nothing wrong/illegal about it. If I spend $30 on a new fancy DVD, and I accidently break it (which has happened.. some of those cases are really poorly designed), I have no recourse. I paid for the content on that DVD.

    Of course, this has been said on this and other websites thousands of times. But the part that gets me is, here we have a technology that allows people to make really poor copies of something they OWN. VHS has been around for years doing the same thing (making poor/lesser quality copies). My VCR can make a better copy of a movie (as long as there is'nt any of that annoying copy-protection built in) then a VCD. With the VCR, it's legal, but with the software for something worse, it's illegal?

    I really hope this company wins its case. And I hope lawmakers start to sit down and really examine what these laws are saying and doing.

    --
    The Internet is generally stupid
    1. Re:VCD is not very good by sh00z · · Score: 4, Insightful

      Which all makes me wonder why the studios haven't pulled out the ULTIMATE weapon against "DVD Back-Up" software: the lifetime replacement guarantee. If your DVD ever becomes unwatchable due to physical damage, simply bring it in and exchange it for a new one. Then there would be be no reason for people attempting to preserve their property to resort to potentially infringing methods, and Sony et al could sue firms like 321 into oblivion.

    2. Re:VCD is not very good by interstellar_donkey · · Score: 3, Interesting

      That will never happen. You're right, it would strike a hudge blow to the the DVD backup software, but the DVD manufactuers want it both ways. They don't want you to make backups, and if it breaks, they want you to pay full price to replace it. Hey, whoever said these companies were interested in fairness?

      Not to mention the fact that DVDs can go out of print and companies that produce them can go out of business.

      --
      The Internet is generally stupid
  9. Judging before interestest become vested by SirSlud · · Score: 5, Interesting

    Interesting and actually probably a very good approach - get the legal clearance before the reactions of the current top players are based soley on the 'here and now' stakes.

    It would have been interesting .. if the recording industry (obviously) didn't predict the popularity of file sharing, would they have 'ignored' Napster had Napster approached them (hell, maybe they did) before they started allowing downloads, with the Sonys, et al. dismissing Napster as an insignificant piece of software and essentially binding them to said assumption? I wonder if it would be more useful to fight these laws before the money begins flowing in, for two reasons:

    a) Those who subsequently have a problem with it will likely garner much less sympathy from the average person if it was common knowledge that they didn't do anything about the problem when they had the chance and the $$ behind the problem was unknown.

    b) The company seeking to sell the potentially illegal software cannot be criticised for taking advantage of the lack of legislation in new areas of technology, which lends credibility to the struggle; ie, they arn't interested in challenging the status quo because they are clockin' 100$ an hour in sales, but rather because they believe that they should have the right to sell said software. It's a subtle distinction, but an important one - they are not interested in changing laws to continue making money, but rather to allow them to try and make money on a claimed innovation. I think Napster always had an uphill PR battle with the 'cynical traditional devout capitalist' crowd, because their interestests were so clearly vested at the time, due to the astonding success of the software by the time their shit was hitting the courts. With the company mentioned in the article, they are not a surefire money maker, which shows that part of the reason they wish to knock down laws is because they believe they _should_ be able to sell the software, not because the employees don't want to take a step down in terms of living standards in the middle of a 'killer app' epidemic.

    --
    "Old man yells at systemd"
    1. Re:Judging before interestest become vested by slideshot · · Score: 3, Informative

      Ir sounds like a good idea, but I don't think it will work for two reasons. Take this with a grain of salt, because I am still a law student, but it's my two cents. What 321 is doing here is asking for a declartory judgment, because they know that they could be sued by the software on the basis of the 2600 case. This is a direct contrversy which the court can actually adjudicate against. However, if a company like Napster tried to obtain a declaratory judgment back in 1998 when it was just first starting, it wouldn't be able to because there would be no existing claim or contraversy, and the court would not be able to adjudicate. Courts, unfortunately, are inheriently limited under Article three to only adjuicate claims and contraverises. Secondly, merely a lack of legislation does not preclude a trial later on. Once legislation banning the software goes into effect, it automatically creates the cause of action necessary. The amout of previous adjudication does not matter simply because there was no existing violation under the law because it did not exist, and now there is a violation.

  10. Re:Finally! by interstellar_donkey · · Score: 4, Insightful

    We decided to
    proactively file this lawsuit not only to receive the courts' assurance that we are in compliance with the law but also to raise the broader question of how Americans' First Amendment rights can be protected in this digital age

    Sounds silly, does'nt it? You have to sue in order to make sure you're not doing anything wrong. Note they are not seeking any damages.

    Can they really be sued for being bullied?

    You can sue for any reason you want. I can sue you because I don't like your name. That would probably be thrown out of court.

    But what 321 is doing is very clever; if the court throws the case out, and the MPAA seeks damages under the DMCA, they are protected. "We already filed with the court, and the court decided that we were not doing anything wrong... at least to warrent the attention of the court."

    Of course, it shows how screwy our legal system is. I can't call up the police and ask 'hey, I'm thinking of doing this.. is it legal?' They won't tell me. But if I do it, and it's illegal, they will arrest me. Laws are written in such a way that half the time people are breaking them not even knowing. It's nice to see a company exploit a loophole like this on the side of good.

    --
    The Internet is generally stupid
  11. DVD Copy Plus? Grabbed a copy .. by dimer0 · · Score: 4, Funny

    I just grabbed a copy of DVD Copy Plus off Usenet. Damn fine product!

  12. DeCSS by squarefish · · Score: 3, Informative

    The only difference I see between this and current ongoing cases with DeCSS is that they are trying to get permission from the court system before they get sued. There is allot of history available on this topic. For those that are just hearing about this, check out 2600's DVD lawsuit history page and more at the Electronic Frontier Foundation website.

    --
    Creationists are a lot like zombies. Slow, but powerful and numerous. And they all want to eat our brains.
  13. So what's Plan B? by ProfMoriarty · · Score: 3, Interesting
    If the previous court cases involving the DMCA and 2600 DO influence the 9th District (which may or may not happen) ...

    My question is simple ... what happens to the company, if it doesn't get approved?

    They are currently sell only one product ... the DVD Copier, and giving away DVD Photo Pro ... is that enough to sell and have the company not go away?

    If it's ruled that the DVD Copier software is not legal ... could that fact actually influence it to be legal, since the DMCA would then effectively put (a) company(ies) out of business?

    According to their own Press Release they are going on the offensive ...

    Best wishes ... and good luck.

    --
    Karma? Karma? I don't need no stinkin' karma.
  14. Re:Here's an idea by Patrick · · Score: 3, Informative
    actually build a DVD player using the free DeCSS code. ... What will the DVD Cartel say then?

    The DVDCCA would point out that the unlicensed player almost certainly violates a long list of patents. Oh, and it would still violate the DMCA, because it would be circumventing encryption that controls access to a copyrighted work. The DMCA is about protecting works from access, not just from copying.

    --Patrick

  15. Re:DVD Copy Plus? Grabbed a copy .. by BasharTeg · · Score: 4, Informative

    I know this is just a joke, but seriously the hell it is ! This damned "product" is a frickin retarded application which autoinstalls SmartRipper, DVDx, and VCDEasy, and then gives you stupid little pictures that tell you how to configure them. I figured I'd get a nice all in one solution, and instead I got this horseshit. I could write the same thing in VB in 30 seconds. Or better yet, a batch file that runs the 3 installers, and then launches IE/Netscape to read a .htm file. This is a TOTAL rip off. Do NOT support these morons repackaging free software and then trying to play on everyone's good side by fighting the DMCA.

    Mod this post up, because I got ripped off and I am admitting it so that other people don't make the same mistake.

  16. Re:it's D M C A by erroneus · · Score: 3, Funny

    OMG!!! That's *IT*!!

    Now I know why my submissions are always getting rejected! I spell everything correctly and the editors think I'm spelling it wrong!!

  17. Re:Finally! by GigsVT · · Score: 3, Funny

    You really do learn everything you need to know in kindergarten.

    Remember when you accidentally or deliberately did something bad to a classmate on the playground, and you knew they were going to tattle on you, and you would run to get to the teacher before they did, so you could get the first word in the matter? And how it worked half of the time?

    Wow. :)

    --
    I've had enough abrasive sigs. Kittens are cute and fuzzy.