[Infowarrior] - MPAA: DRM trumps your fair use rights

[Richard Forno]

Reminder from the MPAA: DRM trumps your fair use rights

As part of this week's RealDVD court hearings, Real continued to argue  
that the movie studios are trying to prevent fair use. At the same  
time, the MPAA pushed back by saying that fair use can't be used to  
defend against the DMCA's anticircumvention provisions, since the two  
are not even related. In fact, this is a gray area of the law that has  
yet to be fully tested in court. Both sides hope that this case will  
help sort things out.

By Jacqui Cheng | Last updated May 22, 2009 12:45 PM CT

http://arstechnica.com/tech-policy/news/2009/05/reminder-from-the-mpaa-drm-trumps-your-fair-use-rights.ars

Fair use has nothing to do with—and can't be used to defend—DRM  
circumvention, according to the Motion Picture Association of America.  
The arguments were made during the RealDVD hearing in San Francisco  
this week, with the MPAA insisting that the DVD copying case isn't  
about fair use at all, but violations of the DMCA's anticircumvention  
rules. The two concepts aren't directly related when it comes to US  
Copyright Law, and the MPAA wants the court to agree that DMCA claims  
trump all when it comes to copying content.

RealNetworks has been dealing with the legal fallout from its RealDVD  
software since September 2008—before it was even released to the  
public. At the time, Real seemed confident that RealDVD operated well  
within the DMCA because the software didn't break CSS encryption—it  
merely copied a DVD straight to a hard drive, keeping the encryption  
intact. Additionally, RealDVD added a new layer of DRM to each file to  
lock the files to the user and PC that created them, which the company  
thought would keep it on the movie studios' good side.

But Real thought wrong. Almost immediately, the MPAA sued Real,  
claiming that the company had violated DMCA anticircumvention rules  
and referring to RealDVD as "StealDVD." Real sued right back, hoping  
to get a judge to declare RealDVD legal; instead, a judge granted a  
temporary restraining order against the company, halting the sales of  
RealDVD.

Real has long argued during this case that its software merely enables  
DVD buyers to make legitimate copies of their legally purchased discs— 
this would theoretically fall under the fair use guidelines in US  
Copyright Law. As part of its counterclaims filed against the DVD Copy  
Control Association earlier this month, Real argued that the movie  
studios were acting as an "illegal cartel" that was trying to stifle  
competition in the market of fair use copies of DVDs.
Fair use v. circumvention: fight!

Real argued this once again in the hearing this week with the MPAA,  
saying that the company needs to be able to make copies to a hard  
drive in order to allow people to use the software's features. Real  
attorney Don Scott told the judge that making copies of music has long  
been recognized as "lawful fair use," according to CNET, and that  
consumers are allowed to make copies of CDs to put on an iPod or some  
other device without having to pay a second time. Isn't the same true  
for movies?

The MPAA insisted, however, that the mere act of circumventing DRM in  
order to make those copies makes one an outlaw; fair use doesn't come  
into the picture. Judge Marilyn Patel questioned the MPAA on whether  
it would be considered circumvention to make a copy to a hard drive  
that was limited to only that drive without the ability to make any  
further copies. "Yes, it would be circumvention," MPAA attorney Bart  
Williams said. "And no, it would not be fair use. The only backup copy  
Congress envisioned was archival, that you would never use until such  
time when your main computer wasn't working... Congress would not have  
gone through the process or have this process if you're going to say  
there is some fair use rights that allows you to circumvent."
Unrelated ideas?

Fair use principles obviously came before the DMCA's anticircumvention  
rules, but the two are not necessarily related. Fair use is part of  
general US copyright law and is used when arguing cases of copyright  
infringement, while the DMCA's anticircumvention rules specifically  
address the breaking of DRM—whether infringement occurred or not.  
This, according to the Electronic Frontier Foundation's Fred von  
Lohmann, is the crux of the MPAA's argument.

"The MPAA's view is that the DMCA's circumvention provisions stand  
separate and apart from general copyright infringement, so that  
defenses to copyright infringement are not defenses to circumvention  
claims," von Lohmann told Ars. "So fair use, on their view, has no  
application because it's only a defense to copyright infringement."

The MPAA has been using this argument for some time, ever since the  
first DVD ripping case in 2000 (Universal v. Reimerdes). However, it  
turns out that this distinction has not been fully tested in court,  
and the MPAA has had only mixed success with it so far. "In Universal  
v. Reimerdes (the deCSS case), the district court essentially agreed  
with the MPAA's argument, but on appeal the court didn't embrace that  
part of the district court's reasoning," von Lohmann said. (But  
neither did the appeals court reject it explicitly.)

However, von Lohmann noted that other cases—ones that aren't about DVDs 
—are increasingly insisting on some sort of nexus with copyright  
infringement before they will permit an anticircumvention claim  
through the DMCA. "For example, in [Storage Tech v. Custom Hardware],  
the court found that there could be no circumvention claim because the  
activity in question fell within the copyright exception for  
independent service vendors (17 USC 117). That's a copyright exception  
(not DMCA exception), and yet the court found that it blocked the  
circumvention claim," said von Lohmann. "Hard to see why the same  
wouldn't apply to fair use (17 USC 107)."

Finally, he pointed out that the MPAA implicitly acknowledges that  
fair use still matters, even if the organization promotes ridiculous  
and roundabout ways to exercise it. Earlier this month, the MPAA  
showed government officials how teachers could make legal clip  
collections for classroom use by pointing a camcorder at a video  
screen showing a DVD (instead of merely ripping the DVD itself). The  
MPAA wants to show that circumvention isn't required in order to  
engage in fair use; other ways of using the material are available, if  
inconvenient. If the Copyright Office agrees, the movie business could  
have more ammo against companies like Real in court.