DVD Back-up Software Developer Vows Fair Use Fight

Controversial DVD back-up, recovery and creation software developer 321 Studios said Wednesday it would go to federal court to appeal a Library of Congress (LOC) ruling that keeps the St. Louis-based company’s products illegal under the infringement provisions of the 1998 Digital Millennium Copyright Act (DMCA). The company also vowed to continue to sell its software.

On Tuesday, The LOC announced four classes of work that will be exempt from the DMCA’s specific prohibition against circumvention of technological measures that control access to copyrighted works. The exemptions did not include making back-up copies of DVDs.

Under the LOC’s triennial review of DMCA non-infringing uses, exemptions were granted for (1.) decoding lists of Web pages or directories blocked by Internet filtering software, also known as censorware; (2.) circumventing obsolete digital rights management devices called “dongles” that prevent access due to malfunction or damage; (3.) accessing computer programs and video games distributed in obsolete formats; and (4.) accessing ebooks for which the publisher has disabled the read-aloud function or the ability to use screen readers to render the text into a specialized format, such as Braille for access by the blind.

“The Copyright Office has made two fundamental mistakes: it has failed to recognize that DVDs are software and it has failed to recognize that Americans have a right to backup DVDs they spent hard-earned money to purchase,” Robert Moore, founder and president of 321 Studios said. “321 will appeal this ruling on behalf of the millions of Americans who want and need our products. 321 believes that the DMCA tramples on the fair use and first amendment rights of all Americans and that the Librarian’s interpretation of the DMCA is arbitrary and unreasonable.”

A company statement added, “Ignoring evidence that many DVDs are out of print and hard to replace, the Librarian relied on the flawed reasoning of the U.S. Register of Copyrights, who told him that consumers don’t need to take steps to preserve access to DVDs they have purchased because there is a ‘ready availability of replacement copies in the market at reasonable cost.'”

321 Studios is also engaged in ongoing litigation with a number of Hollywood studios that claim the company’s software is illegal under the DMCA. The company has filed a declaratory judgment action against eight major motion picture studios and is waiting for a California-based federal court to rule on a partial summary judgment motion in a counter-claim suit filed by seven of the studios.

Wednesday, Moore again contended his products are legal and his customers are not copyright criminals.

“Our customers are not pirates or criminals — they’re soccer moms who want to make sure The Little Mermaid is always at hand, dads who want to protect their movies from the ‘DVD rot and delamination’ they’ve been hearing about and are starting to witness first-hand, and movie lovers who can’t find a replacement copy of an out-of-print work or who can’t afford to buy a second or third copy of The Matrix after the original gets so scratched the DVD player can’t read it,” Moore said.

The Electronic Frontier Foundation (EFF), the San Francisco-based technology civil liberties group, also expressed disappointment with the ruling.

“Consumers are the real losers in today’s ruling, because the Librarian of Congress is ignoring the rights of nearly everyone who has purchased CDs and DVDs,” said EFF staff attorney Gwen Hinze. “We’re disappointed that the Copyright Office and the Librarian of Congress did not recognize the significant impact that the DMCA is having on millions of consumers’ ability to make reasonable uses of digital media they’ve purchased.”

The EFF had lobbied the Library of Congress to grant exemptions to the DMCA’s ban on circumventing technological locks that prevent consumers from “fully enjoying the digital media that they own.” The digital locks, technically known as “digital rights management” systems, limit how consumers can play and view their CDs and DVDs.

Specifically, the EFF wanted the Copyright Office to allow consumers to play copy-protected audio CDs that malfunction to prevent playback, view foreign region-coded DVD movies on U.S. players, fast-forward through unskippable commercials prior to movies on DVDs, and play and make full use of public domain movies on DVDs.

“Although the exemptions granted by the Librarian of Congress are important, today’s ruling just underscores the need for legislative reform of the DMCA to restore the balance in U.S. Copyright law,” said Fred von Lohmann, a senior intellectual property attorney with the EFF.

As mandated by the DMCA, the Copyright Office conducted the rulemaking proceeding to determine non-infringing exemptions with April and May hearings in Washington and Los Angeles.

“The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, non-infringing ways,” said the Library of Congress in a statement. “The DMCA does not forbid the act of circumventing copy controls, and therefore this rulemaking proceeding is not about technologies that control copying. Some of the people who participated in the rulemaking did not understand that and made proposals based on their dissatisfaction with copy controls.”

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