Slashdot Mirror
MPAA Sues Company For Selling Pre-Loaded iPods
ColinPL writes, "The MPAA has launched yet another 'defensive attack,' this time on a small business that is pre-loading movie DVDs onto iPods and reselling them. The original DVDs of the movies that are loaded are also given to the customer. The MPAA is claiming that the service Load 'N Go Video offers is completely illegal because ripping a DVD is against the DMCA. The MPAA is also suing the company for copyright violation."
The MP3.com case (remember that one) seemed to hinge on the fact that even though the service was trying to verify that consumers already owned the CDs, they were doing the actual ripping from a copy that the service had purchased.
Now we've heard that space-shifting falls under fair use, as long as you don't distribute the copy. This is the principle under which it's legal to rip tracks from your own CDs and load them on your iPod.
Now, we've got someone who is oofering (1) a legit copy of the music and (2) a service that will take your DVD and transfer it to your iPod. All copies made under fair use are transferred at the same time.
Now it may be that circumventing copy protection is illegal under DMCA... but does that make it an infringement of copyright?
Much as this sounds like a convenient service, I think the MPAA is completely legally right here: making copies is an exclusive right under copyright, so this is a regular copyright violation; copies for noncommercial format shifting purposes by the end-user might be "fair use"—IIRC, format-shifting hasn't been conclusively litigated—but that's not what is happening here. And DVD copy protection is pretty clearly covered under the DMCA, and bypassing it is a DMCA violation.
Should the law be changed to allow this? Perhaps, certainly I wouldn't object to deep sixing the DMCA, or to writing some kind of reasonable express format-shifting protection into the law, though its difficult to craft without undermining copyright entirely (unless you require destruction of the original before transfer.)
Putting aside for a moment that "format shifting" hasn't really been tested yet in court, the end-user is not the one doing the copying here. It's hard to argue "fair use" when someone is making money by making a copy... that's the whole point of copyright.
W..w..W - Willy Waterloo washes Warren Wiggins who is washing Waldo Woo.
They didn't ask, "Mother, may I?" or Simon didn't say, "Preload movie for consumer." Fair Use be damned.
In future plans, the MPAA will be suing people who have unauthorised memories of watching movies as that constitutes illegal copying to memory. From then on, brain surgeons will wait outside theaters to scoop out people's brains.
A feeling of having made the same mistake before: Deja Foobar
This case may end up depending on: (answer what you want)
(1) Does the market allow for the selling of an iPod and a separate DVD disc?
(2) Does the market allow for someone to buy a movie onto their iPod?
(3) What is the difference between a movie on a DVD and a movie on an iPod? Are a distributor's rights changed?
(4) Can a business do for users what they can do for themselves? For example, rip a DVD copy onto a viewing device?
(5) Can a user pay someone, in any way, to copy their DVD onto any other device they own?
I bet there are some non-intuitive answers that the RIAA would put up there.
Yep, I've no doubt that with these new laws, someone pirating music or movies will get done for both copyright infringement and breaking copy protection. Likewise, I'm sure there are laws that cover the way retailers can distribute media - this is no different to a movie rental company renting out retail DVDs that have "Not for rental" stamped on the back cover.
All this is about is a demonstration by the MPAA to "scare" people into not format shifting the stuff they've bought - after all, the MPAA/RIAA/BPI etc would much rather you rebought all your movies and music everytime a new format is released, or, even better, have you the consumer treat them (the movie and record companies) like a utility company in as much as you rent what you want for a period that lasts as long as you pay rental.
I rip my DVDs to DivX and my CDs to MP3 for portability purposes and this case is not going to change that behaviour one iota. In just the same way that nobody has ever been incriminated for lending a friend a CD or a DVD, I defy any court in any country to prove that any of the format shifting I do has caused any big fat corporation to lose any money - which ultimately is what all these laws are about.
This iPod retailer will be subject to certain rules and regulations meaning that they cannot legally offer format shifted media, even if they hand out the original DVD and that is what the MPAA will get them on.
But they don't stand a hope in hell of making anything like this stick on a private citizen who has done this with media they've legally purchased.
There really is *NOTHING* to see here...
Gentoo Linux - another day, another USE flag.
No, the key doesn't matter per se. It's what's done with it and how it became available that is relevant. Otherwise your argument would be akin to saying that if someone loses their house key by accident, it's not illegal for you to use it to go into their house; obviously, that's a loser of an argument.
The copyright holders authorized DVDCCA to sub-authorize decryption. DVDCCA has sub-authorized certain manufacturers to make decryption devices, if they conform to certain criteria DVDCCA has set forth (e.g. respect UOP instructions on the disc), and users who use those devices in their stock configurations, with all the DRM turned on, etc.
Use anything else, or use those things in the wrong ways, and you're circumventing. It doesn't matter whether you use the same key the authorized player uses; you aren't authorized to use it that way.
I would suggest reading the excellent essay What Colour Are Your Bits? for some illumination into kinds of distinctions the law typically makes.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Orrin Hatch got this piece of crap introduced and passed and has also taken almost $400K From the entertainment lobby.
America, best government money can buy®
So, if I make a backup copy of my customer's disk before working on his computer -- a service provided for a fee -- have I violated copyright law? What if I use Norton Ghost to make the copy, because some files are encrypted? Have I then violated DCMA as well?
IANAL, but this makes my head hurt!
This reminds me of mp3.com
As an "honest" consumer -- I thought it was the best win/win situation ever.
I whip out my credit card and pay $15 for a CD, and I get to download and
listen to the songs I just bought right away until the CD itself showed up
in the mail in a week or so. Everyone gets paid the full amount and everyone
is happy.
Yet -- they chose to take mp3.com down to the ground because of it.
In this case they are marketing the ipod to people who are also paying the full
price for the physical media......
This is said....I don't shed tear 1 when they "take down" the criminals that stealing movies
or music where the content makers don't profit....But to take down the people who are selling
your product at full price seems pretty stupid to me. The people that suffer the most
are the honest consumers.
(+1 Funny) only if I laugh out loud.
Its about both, and even doing either without making money, which is why all of those are exclusive rights protected under copyright.
Right. They are selling the service of making the copy along with the goods (the source and target media.) It therefore is not noncommercial copying by the end-user for personal use, and insofar as there may be exceptions for noncommercial format-shifting for personal use (a disputed point!) that would cover DVD ripping, this is not covered by them.
Really, where? At least in the US, this is a popular myth, not a fact: "a library or archives" has a right to make backup copies with certain limits (see 17 USC 108), and the making of an archival copy of a computer program is expressly allowed (17 USC 117), but this is not generally the case for copyrighted works.
Since the exception for archival copies states "... it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided...", probably not, where it is legal to make a backup in the first place.
Not that the copy being made here is for archival purposes, nor would a court probably find that it is of a computer program, though that's less clear. (A DVD contains principally, of course, one or more audiovisual works, it also includes some instructions that might make it a computer program. I don't know if whether the 17 USC 117 exception applies to DVDs has been litigated.)
No, because the MPAA is charging infringement as well as DMCA violation and seeking remedies for both; the DMCA expressly does not change the scope of any of the provisions or exceptions to infringement, so adding the DMCA claim does nothing to help their other claims.
The only problem with that legal theory is that it's false. The user has purchased a DVD player, not leased or licensed it, and he has not agreed to a license of any kind whatsoever, not even a shrink-wrapped one.
So? The DVD player manufacturer is who has purchased the license. If you did not buy a DVD player that was licensed, then you do not have permission to break the encryption on the DVD. If you get around that encryption, you are breaking the copy protection on that DVD.
The DMCA doesn't say anything about how you circumvent the protection scheme, whether that's by discovering the keys by reverse engineering a licensed player, brute-forcing the algorithm, or finding a weakness in the protocol. The fact is that your player was not authorized to break the encryption, and thus your using it is circumventing the protection.
In fact in DMCA terms a single bit that is supposed to mean "don't copy me unless you have permission" can qualify as a protection mechanism, and not honoring that bit is circumvention. There was an actual case involving this, where someone was sued for copying True Type Fonts, which have a "don't copy me" bit. It's don't recall the result, and it may have failed -- it's the digital equivalent of putting a sign on your front yard that says "My yard is protected by an invisible force shield!" and when someone walks on your yard, charging them with both Trespassing and Breaking and Entering (for busting down your force field). If so that would be a good precedent, but the law itself doesn't distinguish.
The enemies of Democracy are
Copyright laws, we all agree I'm sure, should prevent people from illegally copying and reselling content. Originally, this applied pretty much only to printed books, so that's what the initial system was designed for. Once you start having different mediums, an important concept needs to be well defined which I think both sides of the argument have really addressed: When you buy something, are you paying for the copy, or the content?
Essentially, if I go buy a CD, is it the CD that I would own, or the songs themselves? In music and movies, the lines blur more than on other issues. As the system is currently set up, it seems to be leaning pretty strongly to the "Copy" side of the argument, but, at least from my point of view, doesn't seem to be completely well defined. Now, with anti-circumvention laws and the many forms of copy protection out there, it naturally leans to the "Copy" side anyway... and if you ask me, that's not the way it should be. A content-based system of regulations simply makes more sense to me--and until anti-circumvention laws started getting the green light left and right, that's (at least, from what I can remember) the way things worked for the most part. Let's face it, where's the sense in a law which does nothing but require you re-purchase something you already own simply to use it a little differently. That's like requiring you to own a separate car for interstate driving and city driving.
In my eyes at least, the copyright should apply to the content. The price of purchasing something should consist of buying the legal rights to use it, along with the cost of labor and materials for that copy. But you should be free to copy it as you wish, for your own use.
Selling copies of something such as a movie should of course be illegal, but not when a transfer of the license takes place. In this case, following my argument of how the law should be, preloading content from a legally purchased DVD onto an iPod should be perfectly legal.
Of course, lots of things SHOULD be one way, doesn't mean they are. But, at least from my point of view, I think my argument makes a lot of sense. Too bad those who make and enforce the laws so rarely seem to listen to reason, though hopefully after the last election things should start becoming more reasonable.
Right. They are selling the service of making the copy along with the goods (the source and target media.) It therefore is not noncommercial copying by the end-user for personal use, and insofar as there may be exceptions for noncommercial format-shifting for personal use (a disputed point!) that would cover DVD ripping, this is not covered by them.
It is non-commercial use by the end-user.
It is the merchant who performs the copying -- note that he is neither in possession of the original copy nor of the one generated, the end user is -- who is making money.
If performing the service of creating a copy for someone who has both a legal right to the original copy and a legal right to the copy that is created, then Kinko's performs billion of copyright violations a day.
And don't argue that they do, on the basis of people who don't have a legal right to either their original or to the copy they make, because that's not the same thing.
If what you say is true, Kinko's and all other copiers would be shut down.
No, because the MPAA is charging infringement as well as DMCA violation and seeking remedies for both; the DMCA expressly does not change the scope of any of the provisions or exceptions to infringement, so adding the DMCA claim does nothing to help their other claims.
The MPAA always charges copyright infringement, even if no actual copying took place at all, much less illegal copying. First, because more charges are scarier to their victims, even if they would necessarily be dropped in court. Second, because if they didn't they'd have to explain the difference between a DMCA violation and copyright infringement and how they are unrelated, and how the person they are charging didn't actuall steal anything at all from them.
The DMCA charge is the only one that has a chance of standing up.
The enemies of Democracy are
Untrue. They can argue that in court that they are making an archival copy of each DVD they have in inventory, and then as Copyright requires they are transferring all backups along with the original in order to comply with Copyright. When the MPAA WAH!!!! about the DMCA, they can point to the interoperability exclusion contained in the DMCA.
If they actually read the DMCA they will see that they are in the clear - PROVIDING they get a judge who isn't on the take.
The best course, though, is for this to go to a jury trial and have the jury judge the law, and then the law can be nullified.
The Christian Right is Neither (Christian nor right). See: Matthew 23, Matthew 25, Ezekiel 16:48-50
Your argument holds no water. I can distribute my copy of a book. I own it. It's completely legal in spite of the fact that I have no consent from copyright owner. What I don't have permission to do is copy it.
I'm not a lawyer and there's a a good 2 centuries of legal precendent on this matter I don't know about, but fair use has to do with the kinds of copying you can do yourself without violating someone else's copyright. The example you usually hear trumpteted is backups.
But its not copying by the end user for noncommercial use. Its copying for commercial purposes by a vendor, which is rather clearly a violation of copyright.
Yes, and it is the merchant who is making the copy, for commercial purposes, and then transferring possession of both the original and the copy to the end user. Which is precisely why any case law that protects noncommercial copying performed by the end user doesn't protect this action (not that the case law is really clear on this particular type of format shifting even if it was done by the end user for noncommercial purposes.)
No, if what I say is true, Kinko's and all other commercial copying services would not be protected in making copies of copyright-protected materials without permission of the copyright holder by exceptions to copyright protection which allow end-users to make copies for noncommercial purposes. Of course, you'll notice that (1) there are few such exceptions applicable to printed material in the first place, and (2) Kinko's and other commercial copying services generally have policies that require anyone seeking to use their services to make copies of copyright-protected material to also provide documentation of consent of the copyright holder for the copying, where they aren't the copyright holder.
Really, Kinko's is irrelevant to the issues in this case.
The company doing the copying owns the DVD while they're doing the copy. It's their fair use right to put it on the iPod. Then they resell the DVD (also their fair use right) and include the copy they made, as they have to do.
Were it not for the DMCA, the MPAA would not have a case here at all.
... they simply, uncompromisingly, do not want anyone else distributing their products in a format not of their choosing. The question is whether or not they should have that right. The DMCA would seem to give it to them, which is too bad.
On the other hand, given that the MPAA was largely responsible for the DMCA (even to have furnished draft copies of the legislation to involved Congresscritters) it's hardly surprising that they would invoke it here. This is exactly the kind of case for which they so badly wanted the DMCA
The higher the technology, the sharper that two-edged sword.
Kinkos is not irrelevant. They require evidence you have the right to make a copy of something before they will copy it for you. They do not require you to produce evidence that the copyright holder consents to Kinkos making a copy for you ; only that they consent to the customer making a copy. The person who winds up with the copy needs to have legal right to it. Weather I press the button on the copy machine (or DVD ripper) or pay someone to press it for me is legally irrelevant, as it obviously should be. The straight-up infringement claims in this case are, luckily for Kinkos, horseshit.
The DMCA claims may hold up, but notably apply equally well to the customer ripping their own copies for their own use. The RIAA really thinks it is (and should be) illegal to put your own DVD movied on your own iPod.
Its the consumer that will be using the copy, but its the commercial entity that is doing the copy. IANAL, but thats just how i read it.
To avoid criticism; Say nothing, Do nothing, Be nothing.
There seem to be some misconceptions that need to be cleared up:
1) This is a violation of fair use rights.
No it isn't. Fair use rights are a creation of Congress. Since Congress passed the DMCA the rules of statutory construction dictate that the DMCA supersedes fair use legislation enacted prior to the DMCA. The legal assumption is that any abdication of fair use rights resulting from the DMCA were intentional.
2) The court should make a ruling doing "the right thing"
Courts are not free to ignore the law. Their job is not to decide what is fair, unfortunately. They are bound by the law. As long as the law isn't unconstitutional they must uphold it. That means they can only decide whether the actions of the defendants actually violated the law as it is written - fair or not.
Contrary to what crazed Republicans tell you, judges cannot legislate from the bench. That means they can't even make a ruling on a question that was not presented to them by one of the parties to the suit. If the defendants don't challenge the constitutionality of the DMCA, the judge cannot consider that.