DVD copying firms under the microscope

Hollywood's major music studios last week turned their anti-DVD copying campaign up a notch, bringing legal proceedings against several US software manufacturers.

Industry giants Paramount pictures and Twentieth Century Fox filed for an injunction with the US District Court in New York to bar five companies — Internet Enterprises, Rdenstiny, HowtocopyDVDs.com, DVDBackupbuddy.com and DVDsqueeze.com — from selling the software.

In a separate case in San Francisco, DVD copying software maker 321 Studios LLC defended the legality of its products in front of a judge who started the hearing by confirming her leanings toward the opposing party.

US District Court Judge Susan Illston said she was "substantially persuaded" by the opinions of other judges in earlier cases involving the 1998 Digital Millennium Copyright Act (DMCA), which makes it illegal to distribute tools that circumvent copy prevention technologies. Those opinions were in favour of copyright holders.

At least two US federal courts have already determined that it is illegal to distribute DVD copyright circumvention software (known as DeCSS) under the DMCA. Judge Illston referred to a case in which the website of hacker magazine 2600: The Hacker Quarterly was barred from linking to websites offering the DeCSS code for download.

The DMCA provisions are unconstitutional and obstruct fair use rights, argued 321 Studios in court. Furthermore, the software maker argued that CSS is not a copy protection tool but an access control tool.

"What rights does a copyright holder have and what restrictions are imposed on the user who buys a DVD?" asked Daralyn Durie, the lawyer presenting 321 Studios' case. "Surely one right that is transferred to me once I buy a DVD is the right to unlock the encryption and access the content?"

Buyers can play the DVD in a player, but "the right to make a complete digital copy" is not part of fair use, said Russell Frackman, the lawyer representing the movie studios. "Under no doctrine of copyright law is a user ever entitled to extra copies of any copyright-protected material," he said.

Frackman said there is "hardly a difference" with any of the other cases involving DeCSS, just that 321 Studios "sells it commercially." "We're eager and we think this is an open-and-shut case. It is a very straightforward DMCA case," said Marta Grutka, a spokeswoman for the Motion Picture Association of America, after the hearing.

Judge Illston said she would prepare an opinion on the matter but did not specify when her judgement would be released.

A decision in favour of the studios would be likely to have a similar impact on UK companies. The case continues.

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Wendy Brewer

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