America's Broken Laws

Do you remember Real Player? Huge in the late 1990s. They provided software for streaming audio/video over the Internet before Macromedia blew them out of the water with Flash. They've been quiet for a while, but recently they re-emerged with their latest product: RealDVD. It is software that allows you to make a backup of a DVD.

They knew that this was going to get them sued by the MPAA, and they were looking for the fight. As much as I (and millions of others) hated RealPlayer back in the 1990's I (and millions of others) have been on their side in this battle.

So what is the battle? DVDs are "protected" with the Content Scramble System (CSS). In 1999 DVD Jon gained his name by cracking this system; allowing anyone to access the data stored on DVDs without paying the fee required to get the code to decrypt the content. Yes, that's right. Any DVD player you've ever used; whether in your laptop, desktop, or connected to the tv; was only allowed to be produced after the manufacturer ponied up the cash for the license to legally decrypt the CSS and agreed to the demands that they wouldn't produce a product which allows the consumer to make a copy of the DVD.

So when DVD Jon reverse-engineered CSS, and let the cat out of the bag, the MPAA was not happy. Luckily for the MPAA they had already managed to pass the Digital Millennium Copyright Act (DMCA). Section 1201 (2) Says:

`(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
`(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
`(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
`(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

In short: If there is any kind of copy-protection measure on a piece of media then it is illegal to access the content without paying the proper people for access (and since the people authorizing access won't authorize any use allowing duplication we have our problem).

DVD Jon's work is illegal under the DMCA. Fortunately for DVD Jon, he lives in Norway and the MPAA can't really do much about it. The bigger issue for the MPAA is that the code necessary to break the encryption on a DVD is so simple it can be written on a t-shirt. Not exactly a big hurdle for people that want to use it.

So why is this an argument at all in the first place? Something is illegal, so you shouldn't do it, right? Well, the problem is this little notion of Fair Use (also see the Electronic Frontier Foundation's FAQ). The Fair Use doctrine says you can make a personal back-up copy of content you own.

Fair Use says you can make a backup copy of any content you own, the DMCA says it's illegal to make that copy if the content has any type of copy-protection system in place. Take a guess which side wins in these arguments. I'll give you a hint, it's not us, the individual citizens of the country. If we want to make a back-up of The Fox and the Hound so that when the DVD gets all scratched and destroyed we don't have to buy it again, we can't.

This is the current state of the law in the United States. Absolutely ridiculous and inconsistent. The RealDVD case was decided today by U.S. District Judge Marilyn Hall Patel in San Francisco (ruled against Real). In her remarks she made this absurdity very clear:

So while it may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual’s computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies,

(For a complete article on the matter see Wired's Judge Rules DVD-Copying Software Is Illegal)

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