DO YOU HAVE the right to make a backup copy of a DVD movie in case your kid scratches or breaks the original disk? A federal court in California says no. But don't worry - you can copy a taped version of the movie without risking time in a federal slammer.
This bizarre twist in the fight over U.S. copyright law occurred this month, when a U.S. District Court judge in San Francisco ruled that a popular commercial DVD copy program violated the Digital Millennium Copyright Act and ordered its publisher, 321 Studios, to stop selling it within a week.
The company said it would continue selling its program, known as DVD X Copy - without the "ripping" feature that enabled it to copy movies from commercial disks - but with other features that allow users to create original DVDs.
Theoretically, it was a big win for the Motion Picture Association of America, which has been desperately trying to stop its movies from being copied and distributed over the Internet. In reality, as 321 officials noted, plenty of free programs are available on the Internet to rip DVDs and store the film on a disk drive.
Like many other battles in the war between the entertainment industry and fans who want to copy movies or songs - legally or illegally - this case will ultimately wind up in the Supreme Court.
But it's particularly interesting because the judge directly addressed two competing claims involving the DMCA, a one-sided piece of legislation that slipped through Congress almost unnoticed in 1998 when the attention of the country was focused on the details of Bill Clinton's sex life.
The DMCA was written with the good intentions - to protect copyright holders at a time when copying digital music and video had become far easier and potentially more damaging than it was in the days of vinyl music records and videocassettes.
With a few exceptions, the DMCA makes it illegal to sell or use any device or program that circumvents copy protection designed to protect digital music, movies, books or other documents.
Unfortunately, this section of the DMCA seems to collide with a long-held exception to copyright law known as "fair use." This doctrine makes it possible, for example, to quote from sections of a book in a review or scholarly dissertation. Although the principle is not as firmly established in the world of entertainment, there's widespread agreement that purchasers of music or video also have the right to make copies of music or video for their own, private, non-commercial use.
Fair-use advocates base their claim on a famous 1984 Supreme Court ruling known as the BetaMax case. At the dawn of the videocassette age, Universal City Studios sued Sony to keep it from selling VCRs because they could be used to make copies of movies from TV broadcasts.
In any case, the court ruled that private, noncommercial taping at home to permit later viewing constituted fair use. By extension today, it's generally considered it legal to "rip" CD album tracks, store them as digital files for backup purposes or to play them on your computer and on a portable player.
The key to fair use is that you can't sell or give away copies. That would deprive the copyright holder of royalties from sale of the music or video.
Unlike the music industry, which developed CD technology long before anyone thought personal computers could be used to copy them, the movie industry was worried about piracy from the start. So it encrypted the digital video stream on DVDs using a scheme known as the Content Scrambling System (CSS).
The makers of DVD players and computer drives pay a royalty to the industry for a key to unlock the code. But the encryption scheme itself proved very easy to crack. In fact, a 15-year-old from Denmark did it in 1999 so he could play DVD movies on his Linux computer (the industry had never provided a Linux driver). The Motion Picture Association of America tried to put the kid in jail for that but failed under Danish law.
The important thing is that once a program to crack the DVD encryption scheme made its way to the Internet, the cat was out of the bag. If you can read the digital stream of ones and zeroes that make up a DVD movie, you can store it on a computer. That done, you can use the technology to make a backup copy of the film - which would seem to be legal under the fair-use doctrine. Or you can can trade movies on the Internet - which a lot of kids are doing illegally under any standard.
Enter 321 Studios, which assembled a package of software that made DVD copying - previously a pretty geeky affair - easy enough for anyone to do. The software sold a million copies and won a quality award from PC Magazine - along with a lawsuit from the Motion Picture Industry of America.
In its defense, the company argued that DVD X Copy was perfectly legal under the fair-use doctrine because it could be used for a legitimate purpose - backing up a DVD. Although it's hard to believe that's why DVD X Copy sold a million copies, the argument isn't total flummery - DVDs are a lot more fragile than music CDs, and often wind up useless after the kids have scratched them up a few times.
The movie industry argued that it didn't matter under the DMCA, which bans the use of software to break encryption schemes even if the user has the right to make the copy under the fair-use doctrine.
The court sided with the movie industry. "It is the technology itself at issue, not the uses to which the copyrighted material may be put," U.S. District Judge Susan Illston declared. "Legal downstream use of the copyrighted material by customers is not a defense."
It's an arguable decision - one that has cropped up repeatedly in other litigation involving CSS. Eventually, the Supreme Court will have to decide whether Congress can give with one hand and take away with the other.
The stakes are high for all of us. A new generation of consumer electronics and computer gear will have even more onerous copy protection built in. It's about time to revisit DMCA and make it a lot less one-sided.