MPAA Makes Unauthorized Copies of DVD

An anonymous reader writes "There's a story on ArsTechnica about how the MPAA has admitted that they made unauthorized copies of a movie. That in itself is a bit of tasty hypocrisy, but if it turns out that they ripped a DVD, then the MPAA could find themselves in violation of the DMCA." From the article: "According to Mark Lemley, a professor at the Stanford Law School, the MPAA may have been within its rights to make copies of the film. Given that the MPAA's intent isn't financial gain and that the whole situation may rise above the level of trading barbs through the media into legal action, making a copy may be justified. Personally, I can't see any justification for an organization such as the MPAA ignoring a directive from a copyright owner, but IANAL." Update: 01/24 19:52 GMT by Z : Made title more accurate.

Comments

Uh Oh...

[dancpsu]

The "no profit" loophole was closed by the DMCA. Now the MPAA is fleeing to a locked door. This is going to be fun.

Re:Uh Oh...

[faloi]

The "no profit" loophole was closed by the DMCA. Now the MPAA is fleeing to a locked door. This is going to be fun.

It'll only get fun if the film maker decides to try to take it somewhere. Right now it looks like the film wasn't harmed financially, and I don't think the film maker has a major studio backing him with financial and legal muscle. He'll probably milk it for publicity, and it'll all go away. Or at most be something we point to for the next five years or until the MPAA does something else stupid, whichever comes first.

Re:Uh Oh...

[HaeMaker]

Not harmed financially? If he was harmed as much as $1, he can sue and get into punitive damage territory. If copies were given to MPAA staffers, those staffers will not need to see the movie in the theater or buy it on DVD, since they already have a copy, that is all it takes. IANAL.

Re:Uh Oh...

[tambo]

it depends on whether or not they defeated CSS, or just copied the DVD with CSS intact.

I'm not sure about that.

Some copyright-enforcement mechanisms for CD-ROMs, like SecuROM and SafeDisc, look for particular quirks in the format of data storage on the CD that indicates that it's authentic. Of course, utilities like DAEMON Tools now provide access to ISOs in a manner that emulates the quirks in the original media, for the purpose of fooling the copyright enforcement mechanism into thinking that the ISO is the authentic media. Now, good luck presenting an argument in court that this isn't "circumvention" of the copyright mechanism.

Similarly, the purpose of CSS is to prevent the content from being playable on any copied DVD. Are you sure that "circumvention" is limited to extracting the content without the CSS wrapper - and excludes making a copy of the DVD that looks authentic to the CSS protection?

Fifth, the FBI and Department of Justice have discretion in choosing what crimes to investigate and who to prosecute, as they have limited resources.

That's true. But much more importantly, criminal prosecution has always been an extremely political decision. I really can't see the State of California filing suit against one of its major businesses for a fairly minor and technical criminal violation; the political cost would be too high.

the MPAA may have here a good claim to fair use...

Not sure about this.

The Court of Appeals for the Federal Circuit has construed the crime of DMCA circumvention as inherently requiring some kind of underlying copyright violation - i.e., if there's no actual copyright violation, then there's no DMCA liability. Unfortunately, that statutory construction is suspect for a number of reasons. (The CAFC's reasoning is large based on the positioning of the DMCA within 17 USC, the copyright laws... which seems, at best, alarmingly squishy logic.) This is problematic because the DMCA liability clause is very clear, and very clearly doesn't mention "underlying copyright violation" or anything remotely similar. The Supreme Court of the United States has not yet weighed in, so the future of the DMCA might be interesting.

In other words: The DMCA may or may not require proof of some kind of copyright violation in connection with the act of circumvention. If it does, then fair use is a valid defense to the underlying copyright violation, and can be used to fend off DMCA liability. If it does not, then fair use is no defense whatsoever to DMCA liability.

- David Stein

Perfect

[XMilkProject]

So a movie comes along that the MPAA doesn't like and suddenly all their gripes about destroying the industry with copyright violations doesn't matter?

I would propose that indeed the creators of this film have lost money, and that all of those employees who received copies were almost absolutely going to have purchased the movie (since it is about them).

I would hope that both criminal and civil suits are filed. As they potentially broke criminal law by cracking any protection in making the copy.

I hope this is widely publicized, as it is clear evidence that this group does not care about the law or moral implications of the piracy, but rather is only concerned in doing what serves them best.

I for one will be sending emails to the producers of my favorite news shows urging them to cover the story, hopefully all of you will do the same.

Difficult to see?

[RingDev]

"It's difficult to see how This Film Is Not Yet Rated--which ended up with an NC-17 rating for graphic sexual content--is being harmed."

Call me sceptical, but if I were a ratings association and wanted a film exposing my practices burried, I would slap an NC-17 label on it and make sure it was tucked far away from public sight. But now that this article has surfaced, I want to see it, to see if it really does have graphic secual content, or if the MPAA was just trying to hush a movie.

-Rick

Nothing new here, but milk that publicity!

[Bill_Royle]

I've had a bit of experience in this area, as the RIAA violated my copyright a couple of years ago by reprinting an article I wrote on intellectual property. Had it not been cited by the Washington Post I wouldn't have even been aware of it! Still they ended up distributing that material in a press packet, and of course it was all without permission. They ended up apologizing, but there wasn't really anything that I could do about it at that point.

I suspect it'll be the same with this guy. His case is better than mine, I'd think, as he's got legal resources to some degree I'd think. However, my bet is that in terms of an overall payoff, all this is going to produce for him is perhaps some free press.

I wish him the best, regardless! Way to expose these folks :)

This sort of thing is common

[edremy]

Back a couple of EDUCAUSEs ago, I went to a talk by a RIAA laywer about legal downloading vs. illegal. He was happily showing off iTunes and downloading some Rolling Stones tunes to play for the 200+ people in attendance. (The talk actually wasn't all that bad- he was trying to get the idea across that legal ways to get and share digital music now existed.)

After the talk, I went up with a single question- "Did you clear public performance rights for that? iTunes downloads are for personal use only."

He instantly answered that he had, but given that he was a RIAA laywer, who knows? I'd put money that he formally hadn't, but had just assumed either being from RIAA or fair use covered it. My faculty use stuff from iTunes commonly in their classes- technically they can't except under some strict conditions, but my counsel has been to go ahead provided they take reasonable steps to make sure it stays inside the class.

Statutory damages!!!! =Profit!

[Tsu Dho Nimh]

If the copyright was registetred, he can sak for statutory damages ($50K or so) and not have to prove financial losses from the copying.

It could be profitable :0