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Studios take on DVD copying

Chesterfield, Mo.-based 321 Studios has sold about a half-million copies of its software titles that allow the user to make backup copies of DVD movies to blank DVDs or CDs. Hollywood alleges the company’s software functions in a way that is prohibited by the Digital Millennium Copyright Act of 1998, signed into law by Hollywood-friendly former President Clinton.

The DMCA prohibits the circumvention of technological measures put in place by content owners to protect access to copyright works.

The software company says its products merely give consumers fair use of the movies they’ve purchased — backing up expensive copies of children’s movies or copying snippets of films for educational and journalistic use.

But the traditional fair-use doctrine in this case has given way to making DVDs fair game for movie piracy, Hollywood lawyers contend.

“Clearly, 321 does not think of fair use,” attorney Russell Frackman argued on behalf of the studios. “What 321 sells is a commercial circumvention product.”

Frackman is a veteran of such copyright issues, having led the music industry to a courtroom victory over Napster, the song-swapping company that folded under legal pressure.

Daralyn Durie, the lawyer for 321 Studios, told U.S. District Judge Susan Illston the portion of the company’s software that defeats the underlying access code to movies, the Content Scramble System or CSS, makes the product nothing more than a DVD player at heart.

“What a DVD player does and what our product does are exactly the same thing,” Durie said. “The question here is not whether we have the authority. It’s whether the users have the authority to access the content.”

The CSS scheme included on most Hollywood-produced DVDs requires a software key inside hardware players to access the underlying movie content. Frackman argued that 321 Studios has no right to distribute that key in its software, but he sought to deflect any notion that Hollywood was calling consumers movie thieves.

“It’s not a copyright case. It’s not a case against the user,” Frackman told the court. “It is precisely the type of case Congress foresaw, predicted and legislated.”

Judge Illston said she already had been persuaded by the previous ruling in the Universal City Studios vs. Corley case and was looking to it for guidance in the DVD case. In the Corley matter, the 2nd U.S. Circuit Court of Appeals in New York ruled in favor of nine major Hollywood studios that sought to force Eric Corley, operator of the 2600 Magazine Web site, to remove links to a DVD decryption program.

But Illston grilled Hollywood’s lawyers on the time limitations of copyright materials and how those rights may be effectively extended by virtue of the CSS code contained on DVD discs. If the copyright for a movie lapses, she asked, doesn’t it live on indefinitely by continually preventing the owner of a DVD from accessing the movie as he or she sees fit?

Mark Radcliffe, an attorney on intellectual property who is not involved in the case, said the entertainment industry may be pushing too hard to protect its content.

“Copyright is only supposed to grant enough rights to make works available to the public,” he said. “They’ve taken a much more absolutist position that copyright is some sort of birthright.”

He added that the case may hinge on how people are actually using 321 Studio’s software — whether indeed the company can prove that scratched or worn DVDs are truly a problem for consumers.

Cindy Cohn, legal director for the Electronic Frontier Foundation, also said Hollywood is extending its control a bit too far into the consumer arena. The EFF has filed a brief in support of 321 Studio’s position.

If the studios prevail, the consumer’s right to fair use of media content will surely suffer, Cohn said. Licensing agreements to provide descrambling keys only to certain hardware makers could leave consumers on the fringe, with fewer options for accessing their movies.

“The copyright owners get to move into the 21st century and the consumers are left with horses and buggies,” Cohn said.