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

The Judge should be persuaded by

[Anonymous Coward]

Sony v. Universal. 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.

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?

Re:The Judge should be persuaded by

[u-235-sentinel]

I use a DVD copier all the time. What is wrong with these people? They expect me to NOT have an archival backup of my DVDs?

Not interested. What happens if the original is damaged somehow? Refund? I doubt they would do that. Same thing with my CD's. I make a backup of every single one.

I remember the time my 3 year old was playing hide and seek with one of my video game cd's. You know... the kind that REQUIRES the CD in the drive. So I simply made a copy from my backup and I'm back in the game :-)

Re:The Judge should be persuaded by

[DonGar]

While I agree that timeshifting should be totally legal, there are other legetimate purposes.

For example, if I own the copyright to a DVD, then I should have the right to copy it. This isn't a problem for major productions, but what about my home movies?

What about content that has had the copyright released to the public? For example, I believe this happened to the movie 'Heavy Metal'. If copyright lifespans were closer to the original 14 years, this would be much more of an issue.

And yes, the DVD companies will replace a broken disc for the small fee of the original disk ($10-$30). They sometimes view your purchase as a license to view it and sometimes they treat it as a material object, depending on what is currently in their favor. The law is also mixed in this regard, but isn't always as slanted as the content owners would like.

If the purchase were treated as a license, then copying would be sanctioned, as long as you didn't distribute. And getting a fresh copy (from the company, or by coping from a friend) would be sanctioned as long as you had previously purchased a copy. Moving from one medium to another (tape versus CD) wouldn't matter as long as the content was the same.

If the purchase were treated as a material good, then there would be no restrictions on how you display it. Two examples come to mind.

1) You can't play a purchased CD or DVD in a public place, such as a bar, without special permission.

2) You can't build your own DVD player, or bypass things like region encoding.

I'd be happy with DRM as long as it worked in my favor as well. If 'the system' remembered everything I'd ever purchased, and would let me reaquire it in whatever format I want for the rest of my life, then I'd be more than happy to put up with reasonable restrictions. The big record companies don't appear be to capable of understanding why this could be considered fair.

Re:The Judge should be persuaded by

[WNight]

The rulings of the supreme court are more than simple precedent. Precedents can refer to the opinions behind a decision as well as the specific laws mentioned in the case.

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

Re:DVD X Copy

[diatonic]

You have way too much faith in the moderators.

Re:DVD X Copy

[swtaarrs]

I suppose I do. I've seen some interesting moderations in my time here.

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.

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) 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

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. 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 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

[BardicStorm]

Actually I have the film academy edition of two towers on DVD-R here and it fit's just fine. So even longer movies can be done, just not with any extras or not quite full DVD quality (though I didn't really notice any lack of quality).

Er, wait.. no.. no I don't.. The previous statement is a lie. I would NOT traffic in illegal copies of anything.. nope.. uh-uh.

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.

Re:Let the hybrid robot with the rat brain decide

[comet_11]

I don't know, but it was probably a violation of the DMCA.

Re:Let the hybrid robot with the rat brain decide

[phorm]

Nah, the brains of those in the judicial and political brances are way too expensive for experimentation.

Rat brains come at a hefty discount because they're already used... a nice-fresh politician brain has very little wear and tear.

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.

Re:This is nice

[Matrix272]

I'll be the first to admit that I'm not a lawyer, and really don't know too much about what's legal or not (as far as the judicial system is concerned), so could you provide us with some evidence that proves that judges are required to follow precedent? IMHO, precedents are nothing but opinions, and if someone's opinion is wrong, stupid, uninformed, or unconstitutional, it shouldn't take the US Supreme Court to overrule it. All judges are required to interpret the law, not create law and call it "precedent".

Re:This is nice

[the_2nd_coming]

presidence is a ruling on a law based on facts given at a trial or a hearing. it is not some lone judge out there stamping petitions at the bench as either yes or no depending on how he/she feels that day.

Re:This is nice

[stanmann]

Further,precedent is simply the fact that IF a case with substantially similar facts and law has been tried before, then it has relevent bearing. For example If someone brutally murders his neighbors, then freezes and eats the body parts in Texas; He then is caught and tried; and determined sane, He is going to fry.

that is one implementation of precedent.

Here is another, someone is arrested for shoplifting a candybar. Tried and found guilty, he will be fined or given a sentance of likely no more than 30 days.

Re:This is nice

[angle_slam]

Here is a Wikipedia article on Precedent. The basics of it are as follows (with respect to Federal laws). Congress makes laws, signed by the President. When a case goes to court, the trial court rules based on the facts of the case and the applicable law. In some cases, the statute is very clear and it is applied by the judge. If a higher court has interpreted the law, the trial court is bound by the decision of the higher court. The trial court is required to interpret the law in the same way (if he doesn't he will just be overruled by the higher court anyway).

In the US, there are basically 3 layers of courts: the trial courts (formally known as the District Courts), the appellate courts (Court of Appeal), and the Supreme Court. The Courts of Appeal are divided into 13 different circuits, each circuit handling a particular territory (except the Federal Circuit) or type of case (for the Federal Circuit). A map of the Courts of Appeal is located here. Precedents from the Court of Appeal level are only applicable to the states in the Circuit. For example, a Ninth Circuit decision has no binding effect on Florida, but does have binding effect on California, Arizona, Nevada, and a bunch of other states. Decisions of the Supreme Court are binding on the entire country.

Since the DMCA is a fairly new law, I do not know if any appellate court has ever interpreted it. If the provision at issue in the DVD case has not been interpreted by a Court of Appeals in the Circuit of the case, the judge is free to interpret the law as she sees fit (based on, for example, legislative intent and policy issues).

The judge in this case, Susan Illston, is part of the Northern District of California, which is a part of the Ninth Circuit Court of Appeals.

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

[moldar]

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.

My biggest surprise was that the judge saw an excellent logical argument that seems to be overlooked by most anti DMCA folks - including myself. It is great to have another reason to tell the neophytes about to gain their support in protecting fair use rights.

Re:hmm

[Anonymous Coward]

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

Sorry, just playing devil's advocate.

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 your toaster, for example.

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 based on whether its copyright has expired, so there is no bar to distributing cracked copies once copyright has expired.

2) You can use your 95 year old dvd's still - all you need is a multi-format drive - it is like getting a turntable with a 78 rpm option. I bet they are still available, if you have deep pockets.

3) There is nothing wrong with rereleasing titles in new formats with better quality, and having fresh copyright on the improved version. Right now, you could take a bunch of public domain versions of Hamlet, edit and merge them as you like, and copyright the edited result. This is no different. The originals are still available in the public domain.

IANAL, so the above reasoning could be complete crud.

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

[IWannaBeAnAC]

LOL

Yeah it is a huge joke to think that, if current copyrights ever expire, anyone will be able to read the media anyway. I really feel sorry for the achaeologists of the future. Hopefully decryption tools will advance a lot and today's copy protection mechanisms will be trivially breakable. Otherwise there is a real danger that much of human cultural history will simply be lost forever.

can you imagine this: A museum curator of the future undertakes a last-ditch search for a 500-year-old DVD player so they can copy a bunch of DVD's which are in imminent danger of falling apart becoming unreadable. After a heroic effort, a DVD reader is finally found in an archaelogical dig in a remote village in China. After figuring out how to wire up the reader, they insert the now extremely fragile copy of "Die Hard 15: Die Harder Still". Unfortunately, the only picture they can get is a blank screen, with the confusing text "Invalid Region".... An important artifact of human culture is lost forever....

Re:hmm

[IWannaBeAnAC]

Alternate ending:

After an intense research effort to reverse engineer the reader, the museum manage to copy the "Die Hard 15: Die Harder Still" DVD onto a modern storage device. They then play the movie in a continuous loop as an exhibit in the museum.

Unfortunately, they are then sued by the MPAA, for violations of the SHDMCA (Second Half of the Digital Millenium Copyright Act), for breaking an access control mechanism protecting a previously-copyrighted work. The museum's entire collection is sold for scrap to pay the legal expenses.

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.

Re:hmm

[eyegone]

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/).

The DMCA also criminalizes "trafficking in" any device which can be used to circumvent copyright protections. So you may have the theoretical right to decrypt material whose copyright has expired, but you'll have to re-invent the technique yourself.

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 your toaster, for example.

Sure, but let's take some piece of software that circumvents DVD encryption. While the contents are protected by copyright, circumventing the protection is illegal. After they go public domain (REMEMBER: even though the copyright period is being perpetually extended, according to the current law they do run out), circumventing the protection is legal.

Now, the DMCA makes this software illegal. Period. Therefore, it effectively makes circumventing encryption on no-longer-copyrighted works illegal.

[TMB]

Re:hmm

[IWannaBeAnAC]

Good point. I had forgotten that trafficing hard dru^W^Wweapons of mass destructi^W^W^W^Wcircumvention tools was illegal.

But the software itself isn't illegal (or is it, by some other clause?), only trafficing it. So you can write the software but you cannot give it to anyone.

What an absurdity!

I wonder, how explicit can you make the instructions on how to write such a do-it-yourself program without hitting the DMCA? Convert the program into a song, perhaps? Write it on a t-shirt? (Yes I know all this and more has been done already for decss.)

Re:hmm

[deke_2503]

Not plausible, merely because I can't imagine that Die Hard 15: Die Harder Still would become "lost" with the MPAA still in existance. More likely, they would reissue it every 5 years in a Golden Edition, a Director's Cut edition, a Platinum Edition, a Titanium Edition, a Neodymium Edition, a "THX-Premium-Triple-Plus-Good Sound and Picture" edition, a "Classic Movies" edition, a "Vintage 2010s" edition, a Dysprosium Edition, a "100 Years of Movies" edition, and a few "Action/Adventure Gems" movie packs, etc.

Sorry to burst your bubble, but do you really think that the MPAA would 1) disappear or 2) let one of their multimillion dollar movies be lost to the sands of time? Mwhahahah, you pathetic anti-**AA terrorist!

Re:hmm

[IWannaBeAnAC]

Extrapolating from the vast quantity (99%?) of copyrighted books that are no longer in print, I would not be surprised at all.

There is a finite number of movies that can be marketed at any one time. Unless everyone stops actually making new movies, and the distributors just cycle around existing moves in re-releases and 'special editions', it is absolutely inevitable that the vast majority will fall by the wayside.

I am too cynical to believe that the MPAA etc would be altruistic enough to provide a repository of old movies that have little liklihood of producing profit. Now maybe in the future the cost of providing these movies in some downloadable format (obviously it would be DRM encumbered) might get close enough to zero that it does happen. But I am not going to hold my breath.

But, what about the existing stock of movies that will never make it to DVD? A vast amount of trash, but surely there are some fogotten gems in there too. Will they be simply lost once the last film copy disintegrates?

For a more speculative example, suppose that 3D televisions become a reality in the future (quite plausible actually). Then, today's 2D movies would have the same appeal as black & white movies do to us (read: practically none). A historian might be interested, but a historian can't legally transfer the movies from the old, fragile media, and if at some stage in the future all of this palladium/'secure' audio/video path etc shit happens it might not even be technically possible to copy (or even view) without knowing the encryption keys (which might not be possible to extract non-destructively). If the MPAA is not interested because there is no money in it for them (and they would also object people having access to movies that are out of copyright, just on principle), then the historian is fscked.

Already, a lot of old film/photographs/books have been lost because the media has simply decayed away. We now have a historic opportunity to eliminate this from ever happening again (at least for digital works), but by encumbering the storage format with silly encryption schemes and DRM, we are putting ourselves in the position where the only body that can legally (and maybe even technically) maintain a repository are also among the biggest thugs and monopolists on the planet. I don't think our cultural history is safe at all.

Re:hmm

[stanmann]

Extrapolating from the vast quantity (99%?) of copyrighted books that are no longer in print, I would not be surprised at all.

Extrapolating from the vast quantity fo copyrighted books that should never have been printed, I would not be surprised if only 1% of those copyrighted books that are out of print deserve to be re-published.

Re:hmm

[overbom]

holy shite, this could be the thing that makes the dmca unconstitutional: because it conflicts with current copyright law.

who'da thunk it.

Re:hmm

[deke_2503]

Geez, so much for sarcasm. I would have thought the extensive amount of ridiculous edition names would have clued some people in, but perhaps not.

C'est la vie

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!

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.

Re:stupid

[darkwhite]

You cannot make a simple block copy of an encrypted DVD with any consumer DVD burner. I'm sure that the intersection of the set of people who want to make simple backups of their encrypted DVDs and the set of people with DVD mastering/full burning capability is empty.

Re:stupid

[broter]

Indeed, but it's not reasonable to assume professional equipment is available to the general public. Also, the same right (fair use) that gives the right to backup a DVD also gives the right to use parts of a copyrighted work (ala. educational, commentary). This would required the decryption of part of a DVD to accomplish. (of course, IANAL)

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

[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?

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, protection for authors' is certainly a worthy goal. But I think whether the way to achieve this is via copyright protection is a debatable point. Although it is not clear what the alternative would be, copyright protection is only going to get increasingly artificial and harmful as time goes on (and the cost of copying dimishes).

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 ;)

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 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 will preseve entire disc stucture (resampling video and giving option of discarding unwanted audio) Takes about 2-3 hours to process.

Pinnacle Instant Copy will also preserve entire disc. Takes about 4 hours to process disc.

Hope this helps,
.:diatonic:.

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!!!

Looking Ahead...

[Qacker]

I dream of a world where everyone uses whatever operating system they want but all users are educated about using the right tool for the task. I hope that DRM is seen as the evil idea it is and abolished. People WILL, after a few years, find alternitives to these companies that treat them like unwashed apes. If you buy a car does the dealer or manufactor say what you can and can't do in your own car? Yes laws do tell us not to speed but a dealer should not force you too agree not to say sleep in your parked car because they also sell inflatible beds. Even worse are companies that monitor your breathing rate and when it drops turns on a loud alarm to wake you up. To just about everyone that kind of agreement would seem crazy but yet with software products no one in high places seem to understand that selling a few trilion ones and zeros is the same as buying a car. Yes you can't copy a car but you still have fair use rights and the same should apply for software.

Re:Looking Ahead...

[Anonymous Coward]

comic book guy voice

Worst analogy ever

Re:Looking Ahead...

[ewhenn]

I agree, very well put.

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.

Please GPL it

[argoff]

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

Re:Please GPL it

[deblau]

Go one better, and make the code Public Domain. Then watch as the MPAA attack the Public Domain code on one hand, while spouting lies about how copyrights protect the Public Domain on the other.

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

[TrekkieGod]

Maybe I'm the only one who just caught this, but it seems no one has explicitly stated it this way.

Hmm...considering you're restating Illston's question...I'm going out on a limb and say you're not the first to think of it.

It's a good point though...and I guess she didn't explicitly state it in the same way as you did :)

Re:Copyright never expires now

[kavau]

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

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

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

Re: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

[grahamdrew]

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?

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.

Encryption, in this case, is what makes sure you don't get at the raw form of the data. Your DVD player doesn't *break* the encryption, it decrypts. Sure, you can watch your movie, as you are licensed to do, but you are not licensed to modify it in any way, or use it as a portion of your own work. No anime music videos....

It seems fairly analogous to binary applications, in a way. You may be licensed to use the application, but not modify/look at the source code. If you see an application feature in Word, you can't just grab the code for it, even though you and use the feature to your hearts content (or until the OS dies, either way).

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

[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.

Re:Copyright never expires now

[Xoder]

:s/'The DVD player'/deCSS/g
:s/' disk on your TV screen'//g
:wq

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?

You are missing something else. The DVDCCA claims the exclusive right to license Content Scrambling System (CSS) technology. This would violate the DMCA, but the copyright holders have explicitely given the DVDCCA permission to do so (as a prerequisite for encrypting their movies).

Question, what would happen if I made a DVD, encrypted with CSS, but didn't give the DVDCCA permission to distribute decryption software? Would everyone have to stop selling DVD players?

Re:Copyright never expires now

[IWannaBeAnAC]

It is still a problem though, as by the strict interpretation of the law, even tempoary copies of the data in the computer memory on the way to being displayed are a violation of copyright law.

Of course, if anyone ever tried to argue this, it would be immediately ruled as coming under "fair use". But, the "fair use" provisions are really ancillary to the central tenents of copyright law, so it is quite disturbing that digital copyright relies on "fair use" in such a fundamental way.

Especially since laws like the DMCA effectively eliminate "fair use".

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

[Cyno]

Yeah, but no self respecting person is going to obey the DMCA as if it were a real law.

If we treated all laws the same, if the punishment for decrypting a copyrighted work that you purchased from the store was the same as stealing it, then all our laws lose their meaning. Either that or the concept of who owns the property you buy and put in your home has to be readressed on a national level.

I knew we should have demanded an explanation for those tags they put on matresses. Now it has gotten out of hand.

Re:Copyright never expires now

[M.C. Hampster]

True, but according to the RIAA, intent isn't what matters, it's ability.

Wrong. The copyright holders have given permission to DVD manufacturers to decrypt their content. That means that DVD players do not break the DMCA because the law states it has to be without permission of the original copyright holder.

Whenever a story on copyrights is posted, I can't believe the FUD ratio we get in posts. It's ridiculous.

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:Copyright never expires already

[Anonymous Coward]

Fortunately, with the recent Supreme Court decision that a series tending towards infinity is considered "finite time", it is unlikely something created today would actually go into public domain.

No, I'm not bitter at all.

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:yah right!

[Anonymous Coward]

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

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

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

Re:yah right!

[VTS]

Logically you are buying:
* A licence to view/listen to some copyrighted content
* A piece of plastic that contains that content

Unfortunatelly the music/movie companies turn a blind eye to this distinction and if your piece of plastic breaks then you have to buy another one AND ANOTHER LICENSE ! But the license is like 80% of the price ! Thats like a car maker forcing you to buy a new car if the fuel pump breaks !!!
Frankly it should be against the law but they own that so too bad for us consumers :(

Re:yah right!

[slaker]

Y'know, I looked on various P2P networks for a couple of weeks for Wendy Carlos music... just out of curiousity about what Bach sounds like on a synthesizer.

If you're serious, I'd be happy to snag one from you.

moc_oohay_at_1rekals

circumventing protection != circumvnent copyright

[diatonic]

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

.:diatonic:.

This is great...

[Anonymous Coward]

Directly from the article:

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

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

Re:This is great...

[tribes]

Hmmm, the brain cartel...teaching children to use "anticircumvention devices", by *schools* no less!

Re:This is great...

[tres3]

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

Information wants to be free!

[Thinkit3]

Copyright is against natural law. Thus there should be no law against DVD copying.

Re:Information wants to be free!

[0rbit4l]

Information doesn't want anything. It's information.

You may want to use it certain ways, and we can wax philosophical about the pros and cons of free information in an environment of instantaneous global communication. (positive effects, negative effects, what they mean, etc, etc.) However, certainly it can't be said that information wants diddly squat. You can't even say that all creators of information want their information to be free - that certainly isn't the case. It's up to me, as the creator, to decide if I want to "free" information (code, music, hardware specs, etc) that I create or not. If you don't like it, you don't have to use it.

Furthermore, it's entirely natural for me to want to have some control over the reproduction of my work. It's all about striking the right balance. That's the point of this entire debate. Claiming that there shouldn't even be a debate because you want free information no matter what (and authors who disagree with you are against "natural law") is entirely unreasonable. I see this argument all over slashdot ("information wants to be free"); if someone knocked off your life's work without consulting you & thus stole a fair portion of your livelihood, I think you'd sing a different tune. (However, if on the other hand you choose to release your work freely, more power to you - that's your choice. That's the whole point - choice.)

Re:Information wants to be free!

[shepd]

>Copyright is against natural law.

Please say you don't vote for them.

I _really_ don't want to hold hands with my neighbours every week to improve my karma.

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

Re:You have been lured to the SIDESHOW!

[tres3]

This is not a Score:5 Funny! It is a serious issue. I agree with your suggested actions but the real point is that this is not a sideshow. It is playing Center-Stage! And yes I vote and help out the EFF. The problem is that America is NOT a democracy; it is a Republic. When was the last time you got to vote on an issue? You only get to vote for a representative for your views. By the time a candidate has spent enough money for you to have heard of their name they are so indebted to the people and corporations that paid for the advertising that got his/her name infront of you that their decisions are already bought and paid for. It is unfortunate that those same deep pockets finance the court battles over the DMCA as well.

Now that I'm on to politics I'm going to shut up so a single post doesn't take my karma from good to Satan's hellspawn w/ a keyboard.

Re:You have been lured to the SIDESHOW!

[spagma]

That's great and all but that is not always the solution. For the most part, when we elect representatives, we are never choosing the right person for the job, we are electing the lesser of two evils. The person that will do the right thing by the consumer will never get enough backing to even show up on the ballad.

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? Why should DVDs be any different?

Re:Backups as fair use?

[hazem]

But, I'm not paying the manufacturer of the can opener for a "license" to use the can opener. I purchase it and own it.

Have you ever licensed a photocopier? When it breaks, you call them, and they come fix it. You don't own it, and you can't sell it, but you're paying to use it.

In the case of a CD or DVD, the RIAA and MPAA would have me believe that I've purchased the right to listen or view the content on the CD or DVD, rather than owning the content. If that is true, then I should be able to take steps to perpetuate my ability to excersise that license.

If I feel it's worth the trouble and expense, I CAN photocopy a book, and I CAN copy a CD, and this is legal. I should be able to make copies of the DVDs or any other digital content in order to exersise my license to view the content. And if the dog eats the original, it's still legal for me to use the copy that I've made.

If you're the devil's advocate, what does that make me?

Re:Backups as fair use?

[gantzm]

Except the last time I scratched a book I could still read it.

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?

[PhoenixFlare]

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.

Yep, at least 50-75 CDs that I can lay eyes on at the moment. Most of them have survived 3 moves, dust, heat, cold, being inside my PSX when it fell off a dresser, laying outside the case on my desk, etc., and still work perfectly.

Re:Backups as fair use?

[shepd]

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

If I happen to have a metal shop in the back of my house, yes.

I don't see any laws that are going to prevent me from copying my $0.99 can opener. I just don't do it because the price of the can opener isn't overly inflated.

Same thing with a DVD. No burner, no computer, no copy.

Generally, if you have the tools to do a job, you can (or should be able to) copy pretty much anything you like (apart from patented things and trademarks).

>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?

Unless the dog is ravenously hungry, the book will still be pretty readable, if messed up.

Now, imagine a DVD after it's ripped from the jaws of a growling canine. And that's before ingestion...

Re:Backups as fair use?

[Lectrik]

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).

Very good analogy. Here, in the state of mickey and oranges (hooray florida), your drivers liscence remains the property of the state of florida, and says so at the bottom. Last year I kinda accidentally melted mine and had to pay $20 to replace it, same $20 i had to pay to get it in the first place, but at least i didn't have to test again. (my car was in the habit of making weird noises that month.)

Re:Backups as fair use?

[sn0wcrash]

I can open basically any can with any can opener. I cannot always access my information stored in a proprietary format with anything but the software on that fragile media.

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 industry) are going to charge me 50 times what the media costs because I am buying a license, not a media, I would expect you to replace the media at cost - if not free. Remember, the License didn't expire when the record got a scratch. (We won't go into the Recording Industry and their holdover "Breakage" clause - where they skim money off the top for losses due to the ancient phenolyte disks cracking in shipping. Something that hasn't been an issue since the vast majority of us /.ers were alive.)

Likewise, when the "product" is released on a new media format (without change in the performance - EG. LP to Tape versions) I shouldn't have to pay full price -again- for a "product" I already have the license for. My license didn't expire. Why am I being charged for one again?

I doubt I'm explaining it well, but we can certainly hope we have a clueful judge here. The DMCA is one of the worst pieces of legislature to come down the pike in decades. If this case starts swinging the balance back in favor of the Public, then we have something to look forward to. To me, the DMCA, more than anything else, shows how much the Media controls our lives, our government, and our perceptions.

People don't make Legislators or Laws. The Media bundle them up and sell them to us.

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?

[MorePower]

When you copy a DVD, you suppy the actual disk (or hard drive or whatever the data is stored on) so the correct analogy would be to buy a can opener, carefully photograph all the parts of it, and then use the photos to build your own replacement can opener from your own metal/plastic/whatever. I suppose this could violate patent if it was a patented can opener, but generally it would be legal.

Re:Backups as fair use?

[angle_slam]

That's not what I was talking about. The argument of some is that, when you buy a DVD and it becomes unplayable, you shouldn't have to buy a new one. Thus, the reason for a backup. The analogous argument is that when you buy a product (such as a can opener) and it becomes unusable, you buy a new can opener.

Re:Backups as fair use?

[MorePower]

Well it's a little confused. Most people are saying that if they buy a DVD and it becomes unplayable they shouldn't have to buy a new one because they can make a backup from their own materials. Thus my "make your own can opener" analogy. If you are too lazy to make the backup before it breaks, that's too bad for you, you'll have to buy a new one.

A few people are arguing that media companies are claiming you are buying a licence to view the material, and therefore the media companies should have to send you a new copy (at the cost of the physical medium). I don't particularly like or support this notion. The analogy would then have to be changed to the can opener company selling you "the ability to open cans" and not the physical can opener.

This is part of why I don't like the "you buy the right to view the movie not the physical disk" aguments, its just too darn wierd. I didn't buy the rights to view a movie, I bought a physical disk with a specific patern of molecules on the surface. The reason I bought it was I was promised that the patern of molecules would cause a movie to appear on my TV set when I put that disk in the player.

I still think I should have the right to examine that pattern and use my own materials to make the same pattern (or a similar, or analogous, pattern).

Re:Backups as fair use?

[angle_slam]

Most people are saying that if they buy a DVD and it becomes unplayable they shouldn't have to buy a new one because they can make a backup from their own materials. Thus my "make your own can opener" analogy. If you are too lazy to make the backup before it breaks, that's too bad for you, you'll have to buy a new one.

But that analogy is weak. What people here are arguing is that, by paying $20 for a DVD you have the right to be able to see that movie for the rest of their lives, even if you scratch the DVD; thus, the necessity of legal backups. What the MPAA would then counter with is that you don't get free "backups" of any other consumer product in the world. Why should DVDs be different?

Re:Backups as fair use?

[AnotherBlackHat]

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

I don't expect the can opener company to replace it free,
but I also don't expect to be sued for repairing it,
nor prevented from taking pictures of it to assist in the repair,
or from doing metalurgy on it to determine what sort of welding equipment is needed.

-- this is not a .sig

Re:Backups as fair use?

[MorePower]

Some people are arguing that, but that arguement is a reaction to the MPAA claim that you aren't buying the DVD, you are licencing the content. What I and most other people are aguing is that you can make you own backup copies of your can opener, so why should DVD's be any different?

Re:Backups as fair use?

[angle_slam]

What I and most other people are aguing is that you can make you own backup copies of your can opener, so why should DVD's be any different?

The obvious difference, in the MPAA and the RIAA's eyes, is the ease of copying. You can copy a CD in mere minutes. A DVD in a couple of hours. Both can be done with a few mouse clicks. Can you build your own can opener? Sure, but it will take a long time. Most will just spend another $20 for another can opener.

I really don't understand why the MPAA would make the "DVD=license" argument. Their argument should be based on copyright law and the exclusive right to copy. Saying that there is a license is foolish (because it leads to the free replacement argument), especially since there is no printed license anywhere on any DVD I've ever seen.

Oh, and the whole issue of DVDs and CDs containing copyrighted material, while a can opener doesn't is probably an issue also.

Substantial noninfringing use

[Anonymous Coward]

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

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

Re: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 have a DVD writer yet (which in fact I don't). I may then want to backup my movies to SVCD or some other format. Backing up my DVD to a different medium is just as legitimate (i.e., non-infringing) as backing it up to the same medium.

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:The problem with outlawing a DVD copier

[Hatta]

You avoid an analog generation.

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?

Muscling out the good usage...

[Thaidog]

...if this passes, it means a lot of bad things for a legitamate user... backing up DVD's to your hard drive is an excellent idea. It's keeps a clean copy should such things happen like a dvd gets stolen or what not...

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 and therefore cannot be (legally) removed (if at all).

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 Linux dists get around this. ;-)

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

[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 is the la times article on it.

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 regulation or some other enforcement, copyright would be meaningless. This indicates the natural state of the universe, and informant "wants" to be free. If information did not "want" to be free, then the natural state of the universe would be that you would be unable to copy information that you saw.

I can't believe people are still stupid enough not to understand this simple and rather clever statement. Saying information "wants" to be free does not mean all people want it to be free, and does not mean that we must allow it to be free. It means that it takes more work to make it non-free than to make it free. You can then argue whether this work is worth it or not, but that still does not change the fact that information "wants" to be free!

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.

RTFA

[Anonymous Coward]

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

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

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

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

that.....

[zogger]

... is a REALLY good and unusual and *true facts* point. Real dang good. Outstanding even.

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 of my head onto the network.

Information does not tend toward freedom in the same manner that physical phenomenon tend toward equilibrium. It takes my active intervention to prevent equilibrium - on the other hand, it takes my active participation to spread (and thus "free") any information. Hence, I can just as easily (by your fallacious 'science' argument) claim that information does not want to be free. Neither of us would be right. It can easily be said that it takes more work to make work free than non-free, since I have to actually do something (create & spread) to make it free, whereas if I write it in my book & don't share it with you, that's a whole lot easier - or if I just keep it to myself in my little brain, that's easier still.

Put another way, which "takes more work": distributing a binary only with super-annoying copy protection licensed from some 3-man development shop (un-free) or distributing a binary with the exact snapshot of the source that binary was created with? Kind of shoots a hole in your argument that "closing" information somehow goes against the fundamental state of information, which requires it to be "free."

BTW, people aren't "stupid" because they don't agree with your "clever" philosophy. Maybe they just disagree - or furthermore you could be *gasp* wrong. Or not. But it's worth consideration.

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

[user no. 590291]

It takes my active intervention to prevent equilibrium - on the other hand, it takes my active participation to spread (and thus "free") any information.

Only the first time. After that, it only takes one of two peoples' intervention. And so on, and so on, and so on. (Like Churchill said, the only way two people can keep a secret is if one is dead.) The OP's argument may be pseudoscience, but I liked the analogy.

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 answer is NOTHING!!!!. Information "wants" to be free.

The electron idea is exactly the same. Electrons "want" to be in the lowest energy state. This does not mean that generators and electricity and the entire power grid and Edison are evil or physically impossible. It is EXACTLY the same with information. Just because information "wants" to be free does not mean you are forced to make it free, as you have pointed out it is trivial to make it "non-free" by not telling anybody the information.

Most people when they talk about information are referring to information that somebody has access to, however.

which "takes more work": distributing a binary only with super-annoying copy protection licensed from some 3-man development shop (un-free) or distributing a binary with the exact snapshot of the source that binary was created with?

I don't understand this argument at all. Obviously distributing the source is trivial compared to making a working copy-protection scheme, so this sounds like an excellent arguemnt for making information "free". I figure what you meant to say is that it takes even less work to not distribute the source at all and not do a copy protection scheme, which is certainly true. Unfortunately you have distributed information (the compiled program) and that information can be copied easily. The real way to do as little work as possible and to keep your information "non-free" is to distribute nothing. But that makes the world outside your brain no different than if the information did not exist at all.

However if somebody found that source in the dumpster, it takes active work to prevent them from copying it and distributing it. Ie prosecution or laws or even intimidation or peer pressure or even instilling a sense of guilt into that person. Unfortunately there is no way to change the laws of physics and the natural state is that that information will be copied, at least into that person's brain.

Perhaps the statement should be "visible information wants to be free" or something like that.

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

[0rbit4l]

Look, we can go round & round with this - we just happen to disagree, and that's fine. I understand your argument - sorry you don't seem to understand mine. Anyhow, my point is that you have to perturb the system of information (assuming it exists at all) to copy & spread it. Absolutely no perturbation of an electron is required to make it tend toward its lowest energy level. Hence, no such equilibrium system relationship exists for information, as much as you (or many others) may want it to. The analogy is flawed. C'mon, give it up. ;)

The problem with the "information wants to be free" crowd is the same as with religious nuts who go around blowing up buses full of people, shooting abortion doctors, or ordering helicopter strikes of civillian areas of "the enemy." Claiming "see, science says I'm right!" and putting on the blinders to the rest of the world (especially when science says no such thing) just seems foolish to me. Science isn't about zealotry - this argument about information wanting to be free largely is. Again, information doesn't spread & doesn't even exist without people. Hence, this is a people issue - not an information issue.

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

[spitzak]

Information can exist without people. If the entire human race died out, I think the earth would still have a lot of information left on the surface, perhaps for the intelligent descendents of the cockroaches to eventually read.

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

[0rbit4l]

If a tree falls in the woods and no one is there to hear it, does it make a sound? :)

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"?

A point...

[darkitecture]

Umm... the point was made earlier that a lot of DVDs simply use the second layer for special features and that the movie itself could fit onto a single layer (and thus, fit onto one DVD-R).

Err... how many DVDs have you seen with the fine print on the back of the cover (or even on the disc itself) stating "Layer transition may trigger a slight pause"? Lord knows how many times I've been watching a DVD and perhaps 2/3 of the way through the film, I notice a slight pause in the movie (a mere split second, mind you). Sometimes they try to be subtle and use a 'fade to black' scene change to disguise it... but even then, anyone with a keen eye should be able to notice it.

Regardless, I'm pretty sure for every movie on DVD that you find that separates the film and the special features into different layers, I'm sure I could find out that doesn't.

Just a point...

Nothing that is..

[Kwil]

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

That's the whole point

[Quila]

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

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

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

[deathcow]

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

It's fast like DVD2ONE...

Guide to DVDshrink

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:have ANY of you people ever created anything?

[croddy]

no, all I want to do is watch my DVDs on my linux box. my LG DVD-ROM drive is the only DVD-reading hardware in my house. I should be allowed to exercise the rights granted to me by the license; I should be able to play the movie on my standards compliant hardware for personal use. the DMCA forces me to 1) watch CSS-locked movies somewhere besides at home or 2) use libdvdcss to crack the code. I don't want to be a felon and I like to watch movies at home. why should distributing a program that enables me to exercise the licensed rights be illegal?

Re:'Mulled' over the decision

[BladeMelbourne]

I was thinking the same thing!

Maybe (in the near future) the long arm of the law will be using a bong instead of a hammer on the judges desk!

Judge: "Bailiff, please role me a phat joint. Court is in recess for 1 hour."

Bailiff: "All rise..."

Don't care for the stuff personally, puts me to sleep and ruins my lungs.

Re:'Mulled' over the decision

[R33MSpec]

LOL, Yeah too bad our American friends dont understand the word 'Mull' as being aussie slang for Marijuana. Which is why my post is apparently - "Offtopic" :(

Re:copyright holders???

[tres3]

Probably not. It was most probably a work for hire commissioned by the DVD-CSS. 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 think the 321 studios would have a better leg to stand on if they created a product that let the user excerpt a portion of a DVD for a movie review; that is where their legal arguments seem to be focused anyway. The real difference here is that Xerox can sell a regular copy machine because it has substantial non-infringing uses where as in the digital world, thanks to the DMCA, the use doesn't matter; it is the capabilities of that device (the ability to circumvent copy control technology) that matter.

A point that has not been argued that I think would be interesting to see debated is the definition of effective in the following passage:
No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
Isn't the fact that it was circumvented proof that it is no longer effective.

Regardless of how you look at it the DMCA is in direct conflict with a number of the other laws (some being case law - as defined by the courts) that allow Fair use

Offtopic: So much for moderating in one of my favorite topics of discussion.

Re:'Mulled' over the decision

[Adam9]

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

-547, Flamebait

Re:Shouldn't they write better copy-protection the

[ajs318]

Copy protection is inherently unworkable.

Imagine a device looking like a sawn-off CRT, with A-to-D converters (with appropriate signal preconditioning and artificial impedances) on the red, green and blue gate drive terminals (to get the video signals) and the scan coil terminals (to get the picture timing signals).

NO system can get around that, except perhaps if the final decryption is performed in the user's own brain under the influence of a psychotropic drug. Just buy more pills for more viewings ..... if the drug can be made to react with HGH, you can also add the 12/15/18 age restriction. Damn, I wish I hadn't said that on here, I could have made a fortune patenting it :)

It's all irrelevant anyway, as CSS does not impede copying at all. Can you copy text written in a language you don't understand? Exactly. Ting! Next please.

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.

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: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: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 didn't seem to notice who was writing these laws (a group of content consortium lawyers) or that the law did exactly the opposite of what it had been billed as doing.

Unconstitutional?

[Hatta]

Where in the constitution is copyright or fair use mentioned at all? Copyright is established by statue.

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?

[rcw-work]

Where in the constitution is copyright or fair use mentioned at all?

Congress would be powerless to enact copyright law without Article I, Section 8.

Look at the part that starts with "To promote the progress of science and useful arts..." Note specifically the "limited times" clause.

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:Unconstitutional?

[Sloppy]

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

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

Re:Unconstitutional?

[Gumshoe]

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

What are the previous 8 ammendment's (and those added since) if they're not enumerations of rights retained by the people? I'm not an American so perhaps I'm missing something.

Re:Unconstitutional?

[Communomancer]

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

This basically says that the rights already enumerated are not the only rights that deserve Constitutional protection. Therefore, we _know_ that there are other rights besides those specifically accounted for in the Constitution. Like the parent poster says, however, agreeing to what those rights _are_ is the tricky part.

Re:Unconstitutional?

[Gumshoe]

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

This basically says that the rights already enumerated are not the only rights that deserve Constitutional protection. Therefore, we _know_ that there are other rights besides those specifically accounted for in the Constitution. Like the parent poster says, however, agreeing to what those rights _are_ is the tricky part.

Yes. My comprehension of the parent poster's comment was flawed. I thought he was saying that the ninth ammendment didn't enumerate those "certain rights". A little more thought on my part would have revealed that he couldn't possibly have meant that.

Re:Unconstitutional?

[hobbesmaster]

And then of course theres the ninth ammendment...

Re:Unconstitutional?

[kcbrown]

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

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

But the problem with the argument that "just because this activity isn't enumerated as a right doesn't mean it's implied" is that if it's a valid argument, then the 9th Amendment has no reason to exist.

This is where the history of the Bill of Rights becomes important: there was considerable debate at the time the Constitution was drafted about whether or not a Bill of Rights should be included at all, because many of the founders thought that the existence of the right to do whatever you wanted (so long as you didn't step on the rights of another to do so) was obvious. In the end, it was decided that at the very least a few of what was considered the most important rights should be enumerated in order to guard against the possibility that the government would attempt to usurp those rights along with any others. The 9th Amendment was put there to make the people who didn't want rights to be enumerated happy.

But instead of the 9th Amendment serving the purpose of ensuring freedom, it has instead been completely ignored. I doubt there are any Supreme Court decisions (in recent history, at the very least) that have the 9th Amendment as their basis.

I really wish the founders had stated in the Constitution, point blank, that the people have the right to do what they want to as long as they don't infringe upon the rights of others in doing so, and had then gone on to list the most important rights in order of priority (so that the courts would have something to fall back upon in the inevitable clash of rights they'd be forced to mediate). But, alas, the founders weren't programmers, and were perhaps even a bit naive, since they didn't seem to anticipate the use, by the Supreme Court and other courts, of the letter of the law instead of the purpose of the law to render judgements.

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.

Re:Question on CSS and Patents

[Nom du Keyboard]

First, is CSS patented? I mean, it's gotta either be patented or be in the public domain, right?

Wrong. Choice C: It's a trade secret, like the formula for Coke Cola, which can be protected against publication essentially forever. And there are legal consequences -- strong ones -- against anyone who reveals it.

If it was just a patent, anyone could get a copy of it from the Patent Office and then all they would have needed were the encryption keys.

Re:Question on CSS and Patents

[clonebarkins]

Wrong. Choice C: It's a trade secret, like the formula for Coke Cola, which can be protected against publication essentially forever. And there are legal consequences -- strong ones -- against anyone who reveals it.

So what happens when a trade secret is no longer a secret? There has to be some sort of legal precedent. Do they just try to shut up pandora's box again, or what?

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:Missed point: Excerpts = full copy

[M.C. Hampster]

Which part of the DVD in question is unencrypted to facilitate this?

Point a camera at the TV set. Or better yet, just take the output from the DVD player to get your exerpts. Who said 'fair use' had to mean an exact digital copy of the original? This is basically the response the judge had in the original MPAA vs. 2600 case and I think it makes sense.

Re:have ANY of you people ever created anything?

[Hatta]

Have you ever heard of open source? The GPL? Hundreds of people hear have given hundreds of hours for no return other than the advancement of technology and the betterment of mankind. Quit hanging on to these artificial notions of what you deserve compensation for. There are other ways to do what you love and still pay the bills. Bach never had a copyright, neither did Shakespeare or Leonardo.

Re:Why does Lunix eat up so much memory?

[Hatta]

Free memory is wasted memory.

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]

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"?

Most people consider door locks to be an effective access control method, despite the fact that a circumvention device can be stored on the bottom of a boot. A few quick, forceful applications of said device, and the door pops right open.

Re:circumventing protection != circumvnent copyrig

[orcus]

What I find really mind bending is someone mentioning the words "copyright" and "expire" in the same sentence. Never gonna happen.

No problem with the DMCA

[EvlOvrLrd]

I would have no problem with abiding by the DMCA, providing that the entertainment industry provides me with a way or guarantee that Fair Use is not impeded upon. To and include replacing damaged media for the life of the copyright of the work contained there in. At no aditional cost to me. Including shipping and handling.

They want us to play by the rules; fine. Then they should be held just as accountable for fair use. With penalties just as stiff as they seek against us.

Re:No problem with the DMCA

[Nom du Keyboard]

To and include replacing damaged media for the life of the copyright of the work

What about stolen media? I keep copies of my favorite CDs in my car to protect more against theft of my originals, rather than damage to them through playing.

Re:copyright holders???

[Dyolf Knip]

Their idea of 'effective' means that you had to use some tool to get around it. Can't break it without a pencil and paper? Oh, well then it's quite effective! Case in point, ROT13 on Adobe ebooks. Anyone capable of arithmetic and a knowledge of ASCII could do the translation in their heads.

Re:circumventing protection != circumvnent copyrig

[Sloppy]

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?

That is definitely not what the text of the law says (but you never know what a judge will do).

If a Public Domain work is protected by CSS, there is currently no law that prohibits DeCSSing that work. Likewise, if the copyright holder of the CSS-protected work authorizes the DeCSSing that work, then there's no law prohibiting that.

However, to the best of my knowledge, there are currently no CSS-protected Public Domain works. And as for CSS-protected works where the holder authorizes descrambling, I haven't heard of any. I think it would be interesting if those circumstances were manipulated. If that changed, then it would muddy the issue about what the primary purpose of a DeCSS-like tool is.

Non infringing use

[royalblue_tom]

Surely the argument is that once a work is out of copyright, the DMCA no longer applies, as it is an amendment to copyright law.

Therefore, the copying product (that breaks copy protection) is aimed at public domain content, and has a substantial non-infringing use.

Arguing that this is not a substantial use is implying that the encryption does extend the copyright - it's saying the product will never be needed - but as *all* works will *eventually* come out of copyright (Eldred not withstanding), this is not true.

They can't have it both ways ...

IANAL

Re:Non infringing use

[royalblue_tom]

This argument shouldn't work though. The DMCA is an amendment of copyright law, not a separate standalone law. It affects only rights as they pertain to copyright. This is why people argue in court that the device has substantial non-infringing of copyright uses. I doubt that any lawyer claiming a particular law is pertinent, without the context that it applied it, has ever impressed a judge.

The argument (that I put forward) is not relying on fair use, it's pointing out that the tool will have very significant use in the public domain.

IANAL-SIMBW (so I may be wrong).

As a thought, it's not ok to distribute a circumvention device, but it's OK to manufacture one yourself. A corporation, charity, or organisation is seen in law as a person - if that organidation develops a device, can all members of the organisation legally use it?

US Code

[Spineless Jellyfish]

First off, I am not a lawyer: There are several problems with 321's case. Namely is that fair use clause does not specifically state individuals can make backups of copyrighted material (except software). Could the case be made that a Movie DVD technically software, much like a program on a CD? From the Cornell law website and the U.S. Code (Title 17): Sec. 107. - Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors ------- Section 108 appears to allow copying, but only by libraries: Sec. 108. - Limitations on exclusive rights: Reproduction by libraries and archives (a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if - (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and (3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section. (b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if - (1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and (2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives. (c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if - (1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and (2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.

Mirror your DVD copying software

[BestNicksRTaken]

Looks like we'd all better be mirroring our copies of DeCSS, DVD2one, DVDXCopy, InstantCopy, SmartRipper, DVD Decrypter, DVD Shrink, DVD95copy, Nero, RecordNow etc. before they get pulled off the web.

Better still, put 'em on KazaA to really piss off the MPAA ;o)

The DMCA/MPAA/RIAA are getting too big for their boots - they think they're some sort of new world government that can do anything if it MAY affect their profits.

explanation

[SHEENmaster]

a book isn't very compressed. They typesize, compared to that of a dvd, is gigantic. It also has a protective cover built in.

If you scratch the entire top and bottom of a book, you lose nothing. If you scratch the entire top or bottom of a disc, you're screwed.

Re:circumventing protection != circumvnent copyrig

[UnknowingFool]

If I understand the DMCA correctly, it penalizes decryption and circumvention not copying. If that's true then a bit by bit copying program doesn't violate DMCA.

Re:Possible inconsistent interpretation of the law

[SnAzBaZ]

What if you were to encrypt some data on a video tape and copy it with a couple of vcr's? OH NOES!! look what's happened! Just because the primary use of DVD's atm is encypted video content doesn't mean all DVD's are encrypted.

Judge sees the conflict with fair use

[ukyoCE]

The news.com article makes me hopeful that this judge will understand that the DMCA effectively destroys fair use.

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

She also brings up film reviewers who want to use movie clips (or stills) in their reviews. The DMCA makes this illegal (or at the very least, much much harder).

She doesn't bring up the issue of backups, or compression, which I think are also important. We have a right to make backup copies. We also have the right to medium-shift and compress our media. As with mp3s and Divx, this allows us to fit many more songs or movies on our portable devices (mp3-cd players, iPod, laptop) than would otherwise be possible.

I did a presentation in a class about the DMCA, and brought up the stack of CDs that could fit on a single mp3-cd.

Compression, medium-shifting(Tivo!), backups, reviewing, satire, entry into the public domain...

Fair use and the public domain are history if judges don't overturn the DMCA.

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?

DVD is a license?

[angle_slam]

Many of the responses to this question rely on the fact that when you buy a DVD, you are buying a license to view the movie. Could someone please point me to a link where that is argued by the content owners? I couldn't find one when Googling and it seems logical that the content providers DON'T want it considered to be a license, as copyright law already prevents unlawful distribution and copying.

Re:DVD is a license?

[Gumshoe]

Many of the responses to this question rely on the fact that when you buy a DVD, you are buying a license to view the movie. Could someone please point me to a link where that is argued by the content owners?

It's got nothing to do with the will of the content owners, it's inherent in copyright law (DMCA excepted). When you legally acquire a copy of a copyrighted work you are allowed to do certain things with it; actions which fall into two categories, Use and Fair-Use. "Use" would be listening to a CD or watching a DVD for example. "Fair-use" seems to differ from country to country but might include such things as watching a DVD with a couple of your pals or (in the USA at least) making a backup copy for personal use. The Use and Fair-Use rights you are granted are in effect, a "licence" to do certain things with a copyrighted work.

In a nutshell, the DMCA is an attempt to trump "Use" and "Fair-Use" rights.

Re:DVD is a license?

[angle_slam]

When you legally acquire a copy of a copyrighted work you are allowed to do certain things with it; actions which fall into two categories, Use and Fair-Use. "Use" would be listening to a CD or watching a DVD for example. "Fair-use" seems to differ from country to country but might include such things as watching a DVD with a couple of your pals or (in the USA at least) making a backup copy for personal use.

I've no idea why people think backup copy is a right given to them. The copyright laws give the copyright owner the *EXCLUSIVE* right to copy, distribute, etc. works. (See this statute. A backup copy may be fair use or it may not, depending on how a judge interprets the fair use factors. But to automatically assume that a backup is fair use is wrong. (you're allowed to show a DVD to friends because it doesn't infringe the exclusive right to publicly perform a work.)

Whether or not the laws should be changed is another question, of course.

Re:DVD is a license?

[Gumshoe]

I've no idea why people think backup copy is a right given to them.

http://www.eff.org/cafe/gross1.html

Re:circumvent protection != circumvent copyright

[Anonymous Coward]

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

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

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

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

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

A faster solution

[Ogerman]

Individual cases like this will do little or nothing to get the "anti-circumvention" parts of the DMCA overturned, short of a claim of unconstitutionality.

A better (faster) solution is to pass a law that codifies fair-use and directly amends the DMCA. Such a law is in the works: it's called DMCRA (Digital Media Consumer Rights Act). If you haven't written your congresspersons to voice your support yet, you need to do so immediately. The easiest way to do so is to fill out and submit the form on the page listed below. A personal letter is nice if you have the time, but this will at least get a tally point on our side.

Electronic Frontier Foundation's Action Center form for support of DMCRA

Re:circumvent protection != circumvent copyright

[Sloppy]

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

Cynicism aside, "can be used for" isn't enough. The DMCA language regarding tools is:

• "primary designed or produced for the purpose"
• "has only limited commercially significant purpose or use other than"
• "is marketed by that person or another acting in concert with that person with that person's knowledge for use in"

When there's a gazillion CSS-protected DVDs on the market for which the DMCA applies, and just a few where it doesn't apply, then sure, the above qualifications will still cause the tool to be illegal. But the numbers matter, and it makes the application become subjective opinion instead of an objective fact. And the more you manipulate the balance, the more subjective it becomes, until you eventually reach some threshold (1%? 5%?) where you just can't be sure anymore.

You can also manipulate circumstance where the majority of CSS-protected DVDs doesn't matter. Suppose a DVD comes with player software stored on the DVD itself. Suppose it's bootable, where it starts playing its own CSS-protected content on your PC right after booting. In that context, it would be overwhelmingly obvious that the primary purpose of the player (at least in the manner it it deployed) is to play that specific DVD.

Imagine this: a Linux/BSD/Hurd/whatever distribution on DVD that also includes a CSS-protected movie. Maybe an interview with Linus. Maybe a "for morons" installation guide. Maybe a "BSD daemonette boothbabes lpmud-wrestling match". Whatever. You boot it, and it asks if you want to play the movie or proceed with installation of the OS.

There's still a lot of potential here.

What right?!?

[wikthemighty]

Isn't the guy who wrote the DVD copy program a copyright holder? What about his right to sell a useful product????????

I'm sure there's more than a few people that would be willing to consider marijuana a usefull product, but in most places you can't sell it... ;)

Re:Possible inconsistent interpretation of the law

[Dread_ed]

If someone was trying to be a smartass (I, myself, cannot help it) they might mention that on a very basic and true level digital media of any kind is encrypted.

The encryption is in a very basic form of course, being only 0's and 1's. I know, it sounds pathetic, but remember the "weak encryption" of the Adobe software? All the producer of a copyrighted work has to do is say that the product is encrypted and they gain the benefit of the doubt as well as the full protection of the law.

The resultant logic is that anything that is digitally encoded becomes uncopyable under the DMCA. Even playing the media could be construed as circumventing the access protection.

If, however, you had purchased the proper "decoding" device from the copyright holder or its legally authorized distributor, maybe then it would be legal. Of course the "device" would have to be secure, running secure code in a secure box, free from all the pesky vulnerabilities of today's data management devices. Sound familiar?

Sheesh! Am I paranoid or what? That could never happen...

Re:copyright holders???

[mark-t]

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.

My mother, who worked at a school library before she retired, had access to a machine at work that could do exactly this. I saw the thing in operation once... I was impressed. There was a unit mounted on the top to cut book binding off (although this was a manual process), and then you stuck the sheets into the unit, where it would suck them in one by one, photocopying every double sided page (producing something like 4 or 5 pages a second... I couldn't tell), and could automatically bind the duplicated work. And I don't think either she, the school she worked at, or the company that made the unit were ever held liable for copyright infringement.

Analog Gap

[EvilBudMan]

This is known as the "Analog Gap". This effectively means that all of my old analog equipment is illegal. They will have to pry my JVC cassette deck from my cold dead hands!

Re:copyright holders???

[Spineless Jellyfish]

It is legal for libraries to do this.

According to the US Code, libraries are allowed to make back-ups for archival purposes

Unbelievable

[M.C. Hampster]

You really have no idea what you are talking about do you? Do you honestly think fair use means that you have the right to a complete and perfect digital copy of the original movie? No, fair use is about using portions of a copyrighted work for certain purposes, of which the DMCA, DVD and CSS do nothing to impede.

I have issues with the DMCA, but not in regards to fair use.

well done!

[Thinkit3]

Gotta save this one. I normally don't like catch-phrases, but using this one I think is fine, and this is a great justification of it. I suppose we could think of something better, but this meme has really caught on.

Re:circumventing protection != circumvnent copyrig

[cfallin]

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.

You're assuming, by saying that anything heard can be copied, that the destination medium doesn't require things like digital signatures. Although your two examples, CDs and DVDs, don't require signing, things like console games do (thus the need for a modchip). The only way to get around a restriction like this would be to copy a disc bit-for-bit, which is many times not an option with proprietary formats.

Re:Shouldn't they write better copy-protection the

[grolschie]

One of their complaints was that the resulting copies had no encryption. Thus....

Hey you're not getting last word.

[Thinkit3]

I think you're actually both right, just looking at it from different angles. "information wants to be free" is true in a physical sense, but you're looking at it from a social sense. However, since nobody seems to be able to legislate away things like gravity, the physical sense will always win.

Re:circumventing protection != circumvnent copyrig

[Art Tatum]

Yes. But I don't see what that has to do with the conversation at hand. I was only pointing out the common misconception that the DMCA restricted copy controls. I wasn't defending CSS.