The Law and Controversy of Copying DVDs

The Debate

The debate regarding copyright law and copyright tradition has heated up over DVD copying technology, which is widely available to consumers. In the past, making copies of audiocassette tapes and CDs has been common practice without a lot of objection from the music industry. However, since DVD copying has become easier thanks to inexpensive software, the movie industry has vehemently objected to DVD copying software.

Objections from the movie industry are due to a common feature in DVD copying software decryption of the content scrambling system (CSS). DVD movies are coded with CSS to prevent copying and the decryption technology allows the DVD to be copied through bypassing the CSS protection. The movie industry doesn't want to see their movies copied and re-sold.

Those that support DVD copying technology contend that a consumer has the right to archive or back up purchased digital entertainment media- a process generally called space shifting or format shifting. On the other hand, advocates of digital rights management (DRM),or ”copy-protection," argue that if people are allowed to bypass the built-in security measures on CDs and DVDs, the copyright owners will have no control over their intellectual property.

Both sides of the debate have justifiable claims on legitimacy. One side says they’re for the rights of the consumer, while the other favors the rights of the copyright owner. Those on the side of the consumer feel that manufacturers of new entertainment media distrust consumers and strive to limit the ways consumers can use the materials they legally purchase. The manufacturers, conversely, assume that any type of format shifting will have a negative impact on their market.

The Law

The controversy became a major concern when the Digital Millennium Copyright Act (DMCA) of 1998 passed into law. The DMCA was the ratification of two World Intellectual Property Organization (WIPO) treaties, which amended the United States Copyright Law. Prior to 1998, Supreme Court decisions and laws passed by Congress were clear and consistent. Passage of the Digital Millennium Copyright Act (DMCA) makes it illegal to bypass DRM on a CD or DVD for any reason. Hence, the common practice of changing one’s entertainment media from one format to another became prosecutable. However, The Family Movie Act, passed by Congress in 2005, allows DVD owners to edit content (which requires CSS decryption) such as offensive language and scenes from their DVD movies. 

Anti-DMCA

DVD copying supporters are advocates of the fair use exception of the United States Copyright Law and courts have set a precedent for fair use. Back in the era of Betamax versus VHS, the Supreme Court ruled in Sony v. Universal that copyright law is not violated if VCRs are used to record television programs to watch at a more convenient time.

The court’s justification came from the fourth item in section 107 of Title 17 of the U.S. Code, which gives as a consideration for infringement the following: ”the effect of the use upon the potential market for or value of the copyrighted work.” This means that if the copy or duplication of the copyrighted work does not decrease the market value, then it is not a copyright infringement. Essentially, if a copyrighted work is broadcast on public airways, copying it for personal convenience is legal. Based on the fair use ruling, DVD copying supporters strongly feel that if an individual has purchased a CD or DVD there should be no justification for prohibiting him or her from copying the CD or DVD as long as he or she does not distribute copies.

Pro-DMCA

The fans of DMCA have the law on their side. As the law currently stands, bypassing, or even telling others how to bypass security encryptions is illegal. Copyright owners have always had the sole legal right to duplicate and distribute their copyrighted work. In the years leading up to the passage of the DMCA in 1998, it was already illegal for anyone without the copyright to copy a work and redistribute it. Pirates, as they are commonly called, were already breaking the law. With the passage of the DMCA, the motion picture studios and recording companies thought they would be able to control piracy.

So, Who’s Right?

Both sides are right to a degree. They both provide legally backed arguments. But in the end, the law is the law. It is illegal to bypass DRM. However, with technology advancing at a constant pace, the law does have its shortcomings. When the law was passed in 1998, cell phones could not double as MP3 players. iPods were still three years away from their release date. On the advancing technology front, the law doesn’t effectively mediate between creators and consumers. There is no sign of technological slowing. The law must address this development. Built-in security measures are easy to decipher, because the dissemination of knowledge is so easy in the information age.

Potential Remedies

There are several bills in the United States Congress dealing with this issue. Congressman Rick Boucher of Virginia has drafted a bill that his website claims would ”restore balance to the copyright laws in America.” It is called the Digital Media Consumers’ Rights Act (DMCRA). The bill deals with a few other aspects beyond archiving, such as properly labeling CDs or DVDs that contain certain computer-damaging DRM so consumers are warned of potential computer damage if they try to listen or watch their media on their computers.

Congressman Lamar Smith of Texas has also introduced a bill called the Section 115 Reform Act (SIRA). Congressman Smith’s aim is to make entertainment media available to consumers in multiple formats, while ensuring artists and copyright owners are compensated. Regardless of each side of the debate, ever-changing technology demands up-to-date copyright laws.

References:

Cornell Law School. (1984). SONY CORP. OF AMER. v. UNIVERSAL CITY STUDIOS, INC. Retrieved January 31, 2007 from http://www.law.cornell.edu/copyright/cases/464_US_417.htm EFF. (2006). Section 115 Reform Act. Retrieved February 2, 2007 from http://www.eff.org/IP/060512SIRAof2006DiscussionDraft.pdf

Rep. Boucher, R. (2007). Section by Section-H.R. 1201. Retrieved February 1, 2007, from http://www.boucher.house.gov/index.php?option=com_content&task=view&id=23&Itemid=

U.S. Code. (n.d.). Section 107. U.S. Copyright Office. Retrieved February 1, 2007, from http://www.copyright.gov/title17/92chap1.html#107

U.S. Senate. (1998). U.S. Senate Roll Call Votes 105th Congress - 2nd Session. Retrieved January 31, 2007, from http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=105&session=2&vote=00137

World Intellectual Property Organization. (2007). Encouraging Creativity and Innovation. Retrieved February 1, 2007, from http://www.wipo.int/portal/index.html.en