Sunday, May 24, 2009

MPAA says making a personal backup copy of DVD is copyright infringement

According to this article in C/Net News, the MPAA has taken the position that making a personal backup copy of a DVD is a copyright infringement.



Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

14 comments:

Eric said...

The RIAA is a perfect example of reductio ad absurdum. They are forced into an absolute position that is untenable ( personal non-commercial duplication for preservation ) because they believe that if *any* personal and non-commercial duplication is allowed their cases would fall apart.

Just as the VHS "killed" the theater and movie business, non-commercial duplication will not be the downfall of music.

They should concentrate on fighting commercial duplication ( where the real profits are ), streamlining their business, and open statutory licensing at more attractive rates.

derivative said...

I'm not sure whether or not the MPAA truly believes that if any personal, non-commercial duplication is allowed, their cases would completely fall apart.

However, they obviously don't want to give up any ground they don't have to. Since, for many scenarios, there is no "bright line" test for fair use, it is unsurprising, to me at least, that the MPAA would attempt to draw the line as far in its favor as possible, and leave it to the judge to move the line back the other direction.

This strategy might backfire with a defendant-friendly judge who recognizes the MPAA's intransigence for what it really is, and who might draw the line in a place the MPAA would not be happy with. If such a judge had the case, the MPAA might be busy drawing the fair-use line in a way that seems, well, more fair, in the hopes that the judge would see things their way. But Judge Patel has been (IMHO) extremely sympathetic to copyright holders in some of her previous rulings, and perhaps the MPAA feels that letting HER define the confines of fair use is the right strategy. In any case, there are really only two possible outcomes -- either she gives them something they are happy with, or they appeal.

OTOH, a lot of water has passed under the bridge since Patel's first technology-related copyright rulings, so she may be more immune to the cartel's propaganda than some other judges. Time will tell whether the strategy of drawing the line so far to one side that your input is practically useless to the judge in creating a decision (vs. drawing the line at a point where the judge accepts some of your arguments and actually incorporates them into the decision) is the correct one in this case.

It's an interesting gamble. If Patel (and her staff) have to do all the legwork in creating the actual decision (rather than relying too heavily on arguments from the litigants), then there is a good chance the decision will be well researched and well thought out.

I do have to agree with the plaintiffs, though, that the anti-circumvention provisions of the DMCA seem to be anathema to practical fair use (although I'm sure that the plaintiff wouldn't put it quite this way). I have believed this for years, and have been disappointed with a few rulings that seem to show that some judges just don't get it. (See, for example, Universal City Studios, Inc. v. Reimerdes.) It will be interesting to see whether judge Patel agrees that it is OK for congress to emasculate fair use in this fashion.

Anonymous said...

Hahahahaha, It's not April 1st is it? Come on now, how do they ever expect people to believe this crap?

Anonymous said...

One interesting argument that Real advanced in the case the MPAA brought against them is that the stated purpose of DVD copy protection is to block "illegal copies". If fair use copying is generally legal, then, copying a DVD would not be circumventing copy protection measures -- because those measures aren't intended to stop fair use copying.

There's still the issue that won't come up in this case but should, somewhere, of "what if your copy protection is just stupidly weak?"

-yt

Anonymous said...

If a copy-protection scheme is stupidly weak, then the caveat in the DMCA which states that it applies to "effective" copy protection measures is your friend. A widely circumvented copy-protection scheme is surely not an "effective" one, unless there a special legalese use for the word effective.

derivative said...

Anonymous anonymous --

You've fallen into the trap of thinking that DVDs have a "copy protection" scheme. They don't. You can copy the bits on a DVD to your hearts' content.

In point of fact, if you are a commercial-scale DVD pressing outfit, you can press those bits into a new DVD, and nobody (certainly no equipment) can tell the difference, and your new clone DVD will play just like the original.

It's never been about "copying." It's always been about control of playback, about how those bits can be used. The cartel has bootstrapped itself into a position where they use copyright and the DMCA to obliterate fair use.

And the meaning of "effective" has been bootstrapped as well, by the statute and by judges. In Reimerdes, the court ruled “One cannot gain access to a CSS-protected work on a DVD without application of the three keys that are required by the software. One cannot lawfully gain access to the keys except by entering into a license with the DVD CCA [(DVD Copy Control Association)] under authority granted by the copyright owners or by purchasing a DVD player or drive containing the keys pursuant to such a license. In consequence, under the express terms of the statute, CSS ‘effectively controls access’ to copyrighted DVD movies. It does so, within the meaning of the statute, whether or not it is a strong means of protection.”

Hayden Frost said...

I don't think they're arguing that any backup itself is infringing. If they do, they very well could lose that argument.

What I think they're doing is the 2600 route which found that although circumvention is a cause of action under the copyright act, it does not constitute infringement in itself. Fair use only provides protection against copyright infringement, and since circumvention technically does not constitute infringement, fair use is not a defense to a circumvention (or info mangling) cause of action.

Anonymous said...

"You can copy the bits on a DVD to your hearts' content."

http://en.wikipedia.org/wiki/Content_Scrambling_System
As long as you copy the relevant key(s) to the lead-in area of the disc, which a bit-for-bit copy doesn't cover. Thanks for making me look up why it doesn't work, I've tried it so i can verify that it doesn't on my hardware. You might have a point, in point of fact, if you did have the money for a professional DVD pressing plant, but if you have that kind of money you might just buy your own player key.

"One cannot lawfully gain access to the keys except by entering into a license with the DVD CCA"

So that would make it unlawful to read this poem?
http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/decss-haiku.txt
No.
The key was a trade secret, not part of the algorithm, and as such is not qualified for legal protection now the Streisand Effect has spread it all over the internet. FFS I found that poem on Wikipedia.

derivative said...

"... if you did have the money for a professional DVD pressing plant, but if you have that kind of money you might just buy your own player key."

But Real HAS their own player key. That's part of the lawsuit -- about how they are "misusing" their key by allowing customers to do things the DVD consortium doesn't want them to be able to do.

The point I was making is that CSS does NOT keep well-heeled pirates from making copies indistinguishable from the real thing. All it does is make it difficult (sometimes) for an end user to make what historically would have been perfectly legal uses of the DVD.

"The key was a trade secret, not part of the algorithm, and as such is not qualified for legal protection now the Streisand Effect has spread it all over the internet."

A careful reading of the Reimerdes decision makes it clear that this argument wouldn't sway that judge in the least. He does make an interesting point, though, about "effective" copy protection. Basically if it's not broken, it won't come up in a court case, so any time somebody brings a lawsuit, the TECHNOLOGICAL aspect of the copy protection will have been broken, so you have to look elsewhere than technology for the meaning of the word "effective."

But maybe you can't really blame the judge. He didn't want to raise a constitutional question, and following the letter of that law probably gave him very little wiggle room, because it's another example of one of the best laws that money can buy.

Anonymous said...

What I was trying to say is, when judging circumvention, you must judge the stated intent of the copy protection scheme prior to the use in question. Otherwise, any archiving or conversion scheme could be called copy protection after the fact, and that's ridiculous.

So, if the stated intent of DeCSS is to block illegal copies, and if fair use copies are otherwise legal, then Real would say (among other things) it isn't circumventing anything, and thus is not breaking the law.

It's worth emphasizing yet again that copying a DVD bitwise to the hard drive doesn't actually decrypt anything, and the copy is "as encrypted as the original", so that action in itself appears very legal to me. Subsequent actions may or may not be.

-yt

Anonymous said...

"any time somebody brings a lawsuit, the TECHNOLOGICAL aspect of the copy protection will have been broken"

But it hasn't been. Or at least if it has been, then the flaw was in the DVD standards, not introduced by a third party.

I mean, If you have a combination lock on your school locker, I publish your combination on the toilet wall (where it stays due to Striesand Effect) and you both refuse to change your combination, and complain that the inside of your locker has effectively become public domain, is it correct to say that the combination lock is broken? It might be if you had no facility to change the combination, but if you have the facility to change the combination and don't, then the fault lies between the operators ears.

The CSS standard supports options for revoking player keys should they become compromised. All subsequent titles released cannot be decrypted by the revoked player key. However, it takes longer to get the new discs to market than it does for reverse engineers to find other player keys. And they would, if they felt it was required to watch their legitimately purchased DVDs on their legitimately purchased hardware. Also, not all reverse engineers live in US jurisdiction. Meanwhile those with a legitimately purchased DVD player with the same player key have to update their player key or buy a new DVD player to get the new player key.

The real flaw in all DRM systems is that cryptography is designed to protect communications between A and B from eavesdropping by C. The whole cryptographic system falls down if B and C are the same person.

"It's worth emphasizing yet again that copying a DVD bitwise to the hard drive doesn't actually decrypt anything,"

It's worth emphasizing again that a bitwise copy of the DVD to the hard drive does not routinely include the information in the lead-in area. Which means the key(s) stored there, which is a part of the essential chain of information you need to legitimately decrypt and watch the content. While I do not doubt the legality, I doubt the cartel would mind you making a copy of 4Gb of data you can no longer decrypt with a legitimate player.

From Reimerdes
"Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located."

If you replace "should be" with "is" then you have a description of reality. Like: a bank's money, "is" available to a bank-robber smart enough to get away with it. Or: during the prohibition alcohol "was" available to anyone smart enough to find or make it. You can argue "should be" all day, but you won't change what "is" by doing so even if your the President.

The fact that this judge has chosen to characterize the nature of reality as a "movement which the defendant is a member of" speaks ill of the facts presented to him in this case.

@derivative
Thank you again for having the other half of this argument. Your points are informative, your arguments valid, and your forcing me to question: your assumptions, my own and Judge Kaplan's in order to continue. Good game.

derivative said...

Hayden:

I think that's exactly what they are arguing, and it's very disingenuous. To paraphrase them -- "There is no fair use right to circumvention, so we can use encryption to remove all your fair use rights, and you have no way of getting them back."

Anonymous anonymous:

I don't think we were ever in any serious disagreement. The term "broken" was mine, not the court's. I should have said that an encryption scheme would not wind up in court unless it had, in fact, been "circumvented."

And, the judge in the Reimerdes case made it clear that the the form of the circumvention could have been by writing the keys on a highway billboard, not just on the bathroom wall, and he would still have considered it "effective" encryption, because in the NORMAL OPERATION of a STANDARD DVD player, there are no ways to bypass the protection.

From the labels' perspective, revoking a player key (changing the combination on the lock in your scenario) is not a realistic option -- they would have millions of consumers mad that their players wouldn't play new releases any more.

As far as making a copy of a "bucket o' bits," you're right that nobody would care about the copy if you can't do anything useful with them, but realistically, that's the COPY that COPYright is supposed to leave as an exclusive right for the copyright owner.

And as you point out, from a technical perspective, DRM is a losing battle. The net effect of the anti-circumvention provisions of the DMCA (and the lawsuits based on them) are to delay the inevitable new social/legal foundation for copyright in the internet era. Instead of acknowledging, as Bruce Schneier has pointed out, that "trying to make digital files uncopyable is like trying to make water not wet," we are wasting years and millions in legal fees pretending that water is, in fact, dry. Seven years ago, labels tried (arguably almost successfully) to close the "analog hole" by buying legislation that would mandate that A/D converters enforce DRM. Can you imagine what happens when an A/D converter in a medical device sees what seems to be a "do-not-copy" watermark in the data stream and shuts down? When that didn't work, the cartels worked to help beef up hacking laws. The goal is to get debuggers and network analyzers classified, like lock picks, as the sort of thing you must be licensed to own. Every time Fox or ABC News puts a negative, anti-social spin on a story about somebody with technological prowess, you need to step back and realize that they are doing it on purpose. The large companies who own wide swaths of our common heritage are cynically working to make sure that future potential juror pools are predisposed to think anybody who knows how to program a computer is up to no good.

</RANT>

Anonymous said...

From what I've seen here, many of you think the MPAA wants to take a "any DVD copy is illegal", so you must license players from us exactly such-and-such. You may well be right.

But if they take that approach in this case against Real, then Real might have a cakewalk with its anti-monopoly counterclaims. So, I'm interested in seeing how this plays out.

-yt

Anonymous said...

MPAA/RIAA has argued that back up copies do count as piracy, because it's easy to go to a store and buy a new DVD.

SAR