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.

Comments

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

[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 is another copyrighted work B which is also encrypted using method X and B remains copyrighted. Does the DMCA allow you to break the method on A in that case? It may not, because you are also breaking the method on B (because they are the same method). This would seem to violate Article I, section 8 of the U.S. Constitution, where it states:

To promote the progress of science and useful arts, by securing for limited times to inventors and authors the exclusive right to their writings and discoveries.

Furthermore, suppose that B is no secured with X, in fact X becomes obsolete, but B remains copyright. Does the DMCA say it is still illegal to crack X? What happens if the media on which A is stored starts to fail? Can we ever extract A and revert it to the public domain? The judge may have found a very compelling approach. Perhaps that will make the DMCA unconstitutional?

The judges insight on this looks real promising to me.

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!

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.

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:.

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!

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?

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.

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

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: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: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: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?