DMCA Ruling Against 321 Studios

The most egregious aspect of the vile DMCA is the anti-circumvention provision that says you cannot abet copy-protection circumvention, even though the consumer has the right to make a fair use copy of a DVD. This catch-22 mentality has now been reaffirmed by a San Francisco federal judge:

In a ruling released Friday, Judge Susan Illston granted Hollywood studios’ request for an injunction against 321 Studios, saying the small software company has seven days to stop distributing its DVD-copying products.

The case was widely viewed as a test of how far commercial software could go in helping consumers make backup copies of their own legally purchased digital entertainment products, such as DVDs or video games. Illston wrote that federal law made it illegal to sell products that–like 321 Studios’ software–break through DVDs’ antipiracy technology, even if consumers do have a legal right to make personal copies of their movies.

“It is the technology itself at issue, not the uses to which the copyrighted material may be put,” Illston wrote. “Legal downstream use of the copyrighted material by customers is not a defense to the software manufacturer’s violation of the provisions (of copyright law).”

….321 Studios has said it has sold about 1 million copies of its DVD-copying software, many of them through mainstream computer stores such as CompUSA. Under the ruling’s terms, the company will have to remove from its software the ability to “rip” copies of copy-protected DVDs or take the products off the market altogether.

The company said it would immediately ask for an emergency stay that would let it keep the software on the shelves but would appeal Illston’s ruling, regardless of what happened.

“We can’t just lay down for this,” 321 Studios President Robert Moore said. “It is too important for the consumer; it is far too important to the evolution of our culture…We think the final battle will be fought at the Supreme Court or at the congressional level.”

….Most Hollywood DVDs are protected with a technology called Content Scrambling System, or CSS, which encrypts the content on the discs so that they can only be read by devices with authorized “keys” to unlock the data. A studio-affiliated trade group licenses those keys to DVD player manufacturers.

However, in 1999, a Norwegian teenager named Jon Johansen released a software program called DeCSS, which allowed computers to decrypt DVDs, even without a licensed “key.” Once the video was decrypted, it could easily be copied, and so DeCSS quickly found its way into DVD-copying tools.

Hollywood studios sued to keep DeCSS offline, and a New York federal judge ultimately agreed that posting the software online violated parts of the U.S. Digital Millennium Copyright Act, which bars distribution of tools that break through digital copy protection mechanisms.

Not long afterward, 321 Studios began selling its own software, however. Despite the New York ruling, the company argued that its software was legal and necessary in helping consumers make the personal copies federal law allows. [CNET]

321 is right: this is too important to leave to lower courts. Either congress should readdress the DMCA and modify the most consumer-unfriendly elements, like the prohibition on circumvention in order to make a lawful copy of a DVD, or the Supreme Court should throw the whole mess out.

In the meantime, get your DVD-copying software while you still can.

More on the DMCA here, here, here, here, here, here, here, and here.