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Clever Anti-DMCA Argument by 321 Studios
Posted by Ernest Miller on Thursday, December 05 @ 15:48:06 EST Digital Millennium Copyright Act
PC World runs an interesting story on 321 Studios and their new software package, DVD X Copy, which permit users to copy DVD movies from DVD to a recordable DVD (New Tool Makes DVD Copying Easy). The article also talks about the ongoing DMCA-based lawsuit pre-emptively launched by 321 Studios against the MPAA and movie studios.

Read more below and take a look at previous LawMeme coverage (Is Backing Up DVDs Fair Use or Infringement? 321 Studios Suit Update) and (321 Studios Challenges DMCA).

What the article doesn't mention is the current status of the case, which is trying to survive the same legal question that torpedoed Ed Felten's case - whether a case or controversy exists. The movie studios claim that they have not threatened to sue 321 Studios and that, in any case, the legal issues raised by the case will be answered in the Elcomsoft case and thus do not need to be answered in the 321 lawsuit. The studios' case on this issue is fairly strong. I hope that 321 does it make it to the next stage of the lawsuit, but it is unclear whether that will happen. The next hearing in the 321 case will be held in January.

The article does have a particularly interesting quote, however:

What's more, [Robert Moore, president and founder of 321 Studios] says, DVD X Copy doesn't actually break the CSS on commercial DVDs.
Instead, 321 Studios intercepts the video and audio stream after a DVD player has decrypted the CSS code. Moore argues that all DVD players decrypt the CSS code when they play a protected DVD. Because it intercepts the signal after decryption but before the video is rendered, the product does not run afoul of the DMCA, he says.
This is actually a very interesting legal point. The anti-circumvention clause of the DMCA distinguishes between "access" control (17 USC 1201(a)) and control over other rights of the copyright holder (17 USC 1201(b)) (essentially, copy control). Unfortunately, the courts have failed to make this distinction, conflating access with use. After all, you have to "access" a work to use it, right? Thus, all technical protection devices become "access" control devices. This is not the meaning Congress intended and has the effect of making the DMCA even worse than it is. You see, it is legal to circumvent for purposes of making fair use if the device only protects other rights of the copyright holder (17 USC 1201(b)). It is illegal to circumvent an "access control device" for fair use purposes since, presumably, you don't have a right to access the work in the first place (17 USC 1201(a)). In both cases, it is illegal to distribute the tools to circumvent (even if using the tools is legal under 17 USC 1201(b)).

This claim by 321 Studios emphasizes the distinction between the two types of devices. After all, they couldn't capture the decrypted signal unless there was legitimate "access" to the signal in the first place. A clever and proper argument against the "access" control argument, I believe. However, if the claim is that 321 Studios does not violate 1201(b) as well, then it goes too far for a judge to accept (not that the more limited claim will be a difficult win as well). [via The Shifted Librarian]

 
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Related Links
· PC World
· 321 Studios
· DVD X Copy
· New Tool Makes DVD Copying Easy
· DMCA
· MPAA
· Is Backing Up DVDs Fair Use or Infringement? 321 Studios Suit Update
· 321 Studios Challenges DMCA
· Elcomsoft case
· 17 USC 1201
· The Shifted Librarian
· More about Digital Millennium Copyright Act
· News by Ernest Miller


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