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DVD Decryption Ruling Ambiguous

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It’s ALL ambiguous right now.

Hollywood asked that the DVD decryption code be declared a trade secret and banned from the Internet – they got part of that:

    The case has pit freedom-of-speech arguments against an entertainment-industry effort to protect what it says are trade secrets. Hollywood is happy because the court upheld an injunction that prohibits Internet posting of code that allows computer users to crack copy-protection on DVD movies. Web-site owners such as Andrew Bunner, the San Francisco computer programmer who was sued for posting the code called DeCSS, are happy because they’ll get another chance to challenge Hollywood’s argument that copy-protection code is a trade secret. [Mercury News]

That’s a lot of happiness.

    The bigger issue, however, is the conflict between freedom of speech and the desire by companies to protect trade secrets.

    “The ruling means that there is no longer an argument that the First Amendment bars the issuance of a preliminary injunction,” said Robert Sugarman, an attorney representing the DVD Copy Control Association.

    “The big picture is this is a victory for software publishers,” Johnathan Band, a Washington-based intellectual property lawyer, told Bloomberg News. “The Supreme Court held that the First Amendment does not trump trade-secret law. Software publishers are going to still be able to use trade secrets law to protect their products.”

    ….Cindy Cohn, legal director for the Electronic Frontier Foundation in San Francisco, said she would have preferred that the state Supreme Court had upheld the appellate court’s ruling on the First Amendment matter but welcomes the opportunity to argue the trade-secrets issue.

    The DVD Copy Control Association, she said, now must prove that its content-protection code is a secret.

    “We’ll go back down to the court of appeal and present the facts and it will be painfully clear that DeCSS is not a secret,” she said. “It’s on T-shirts. It’s on neckties. It’s in thousands of places. Just do a Google search and you’ll find it.”

So now we will find out if the code is a “trade secret.”

Speaking of ambiguity – check out this juxtaposition on the same Yahoo! page as this story is promo/link to another story:

It comes complete with a neat little graphic and everything. You see, the DVD industry claims that backing up your DVDs is illegal. The story by ExtremeTech writer Jim Louderback:

    I’m not in the habit of turning mild-mannered law-abiding citizens into criminals. I don’t gamble, buy cigarettes for teenagers or employ illegal aliens to watch my kid. I don’t even like gangsta rap. But I do like movies, and my passion for technology means I may have doomed my four-year-old to a life of crime. I might be about to do the same to you.

    We’re about to explore how to copy DVDs, a topic of murky legality, where shadowy bootleggers co-exist with upright citizens who wouldn’t dream of exceeding the speed limit. School age children, and those with weak hearts are advised to stop reading now, click back to the main Yahoo page, and find a tamer article to read – perhaps one featuring JLo and Ben. For the rest of you, let’s get started.

    Just remember, I warned you.

    DVD movies, like music CDs, are stored digitally on that plastic disc, in a stream of zeroes and ones almost as long as War and Peace and Remembrance of Things Past combined. VCR and cassette recorders, by contrast, transcribe in an analog format – closer to what your eye and ear perceive.

    Each time a cassette or VHS tape is copied, the music or video degrades. That’s because the recording can’t match the original source. That’s why the “master” was so important in the pre-digital days, because only it could generate the best copies for sale or share.

    But when you make a copy of a digital file – whether it’s a Rolling Stones song, Harry Potter movie or Excel spreadsheet – the copy is identical to the original. It’s hard to mess up ones and zeros.

And so on and so forth. He has links to products that copy DVDs, and to free shareware that does the same.

Every meaningful reading of “fair use” would indicate that making a personal use back-up copy of a DVD you have legally purchased is perfectly legitimate – every reading, that is, other than the dreadful DMCA, which prohibits use of digital decryption. That’s why (among other reasons) the DMCA is terrible law and outrageous nonsense.

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About Eric Olsen

Career media professional and serial entrepreneur Eric Olsen flung himself into the paranormal world in 2012, creating the America's Most Haunted brand and co-authoring the award-winning America's Most Haunted book, published by Berkley/Penguin in Sept, 2014. Olsen is co-host of the nationally syndicated broadcast and Internet radio talk show After Hours AM; his entertaining and informative America's Most Haunted website and social media outlets are must-reads: Twitter@amhaunted, Facebook.com/amhaunted, Pinterest America's Most Haunted. Olsen is also guitarist/singer for popular and wildly eclectic Cleveland cover band The Props.
  • If the makers of the tangible products would only realize that what is truly marketable are the intangible aspects of it (i.e., the information – 0s and 1s which were used to program the movie onto the disc with), and then marketed them instead of the tangible portion, it would probably tone down the conflict. I wouldn’t mind going to a movie company’s website, or record company’s website, then downloading an entire album via broadband to my DVD/CD burner. I think once more of this occurs, the industry’s argument will become stronger.

    Also, I think the more of this stuff that is available free of charge, the more likely it is that it won’t be seen as worth the money people currently pay for it, somewhat similar to high quality blogging being said to devalue the value of the work of paid columnists and journalists.

    I think that a certain amount of free information is a good thing, but the more of it that is free, the less valuable information becomes as a commodity, which essentially will devalue other things requiring information to run and/or exist.

  • Eric Olsen

    But every consumer deserves to be able to make a back-up copy of DVDs and encrypted CDs just like they can VHS, vinyl records, etc. My 3-year-old beats the hell out of DVDs, which is one of the examples Louderback uses.

  • jadester

    If they were to sell films online as digital video files, if they were cheaper than video/dvd, i’d buy.

  • Being able to make archival copies of movies, music or software that I buy seems like an inherent right. I should be able to pay much, much less for the product if I’m prevented from copying it.

    Such has not been the case though. Price and archive/copying capability are two different things, it seems, and barely related as they should be.

  • This is sort of related, sort of unrelated: I rip soundtracks from concert DVDs to listen to. I buy concert DVDs specifically for this purpose. I have a DVD player at home and a DVDROM drive in my computer at home. I don’t in my car and I don’t in my computer at work. I’d rather listen than watch, really.

    Bands are more often putting out live DVDs than live albums lately (just like they did with videotapes) and I never know why. Just put the damn thing out on CD while you’re at it. But I digress. I have no time to sit down and watch, but I can listen any number of places, which brings me back to my issue: if they prevent me from ripping the audio like I do now, I have no reason to buy concert DVDs, and, therefore, won’t be buying many DVDs at all because, like I said, I don’t have time to watch, just time to listen.

    I wonder how this will impact my own “legal and yet somehow illegal” activies?

  • Eric Olsen

    Thanks Tom, It’s innocent but ambiguous uses like this that point out the stupidity of the copyright industry’s rigidity, as backed up by their toadies in government.