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Thursday, January 09, 2003
A firefight over burning DVDs


DVD x Copy from 321 Studios [www.dvdxcopy.com] is a nifty $99.99 program that lets you use a DVD burner on your Windows XP or 2000 computer to make a copy of movies or other DVDs. It's convenient, for example, to make a copy of a DVD to watch on your laptop during a long flight so you won't risk losing or damaging the expensive original.

It's also handy for making a copy to give to a friend, and there's the rub: The movie industry thinks the program violates the Digital Millennium Copyright Act of 1998 [DMCA] and wants a federal court to order it off the market.

The law on this subject is a muddle. There is a long-recognized "fair use" right under copyright law for individuals to copy material for their personal use. But the DMCA allows copyright holders to use "technological measures" to protect the content and makes it illegal, and under some conditions criminal, to tamper with those protections.

There are a lot of programs you can download from the Internet that will let you copy DVDs, but they seem aimed at those with considerable technical skills. DVD X Copy does a good job of copying DVDs and making it simple. You put the original DVD in your drive, and the program computes whether it will require one or two disks to make a copy. [Writable DVDs don't have as much capacity as commercial disks, so a single disk movie will often spill onto a second DVD.] Your computer makes a temporary copy on your hard drive, then you insert a blank disk and burn your DVD. The disk will then play in any compatible player. Unlike 321 Studios' earlier product, DVD Copy Plus, which copied DVDs to video CDs, DVD X Copy retains the quality of the original recording, though some special features, such as games, may be lost.

The company has made an effort to meet the objections of copyright holders. When you play a copy made with its software, the first thing you see is a message stating that the disk is a copy made for personal use only. If you try to make a copy of a copy, it will fail. And the duplicate contains a hidden digital "watermark" that can trace any disk back to the specific copy of DVD X Copy used to create it. "We feel very strongly that what we are doing does not violate the DMCA," says 321 Studios President Robert Moore. Adds Boston intellectual property attorney Bruce D. Sunstein: "321 Studios is dealing with these issues in a responsible way."

The movie industry takes strong exception. After the Motion Picture Assn. of America last spring asked the FBI (news - web sites) to investigate 321 Studios for possible criminal violation of DMCA, the Chesterfield [Mo.]-based company launched a preemptive strike. It asked a federal judge to declare that its software did not violate DMCA and that distribution of the programs was protected by first Amendment free-speech rights. The eight movie studios named as defendants, the MPAA, and the Justice Dept., which intervened in the case as a defendant, worked hard to get the case dismissed.

On Dec. 19, they abruptly changed their strategy by agreeing to let the case proceed and asking for an injunction barring the sale of both DVD Copy Plus and DVD X Copy. It is probably no coincidence that the change of heart came just two days after a federal court jury in San Jose, Calif., acquitted ElcomSoft, a Russian software company, on criminal charges of "trafficking" in software that allowed unauthorized copying of electronic books. The Justice Dept. had argued that the ElcomSoft case was an appropriate vehicle for a constitutional review of DMCA.

It's important that the courts clarify just what the copyright law actually means, but that could take years. In the meantime, the entertainment, computer, and consumer-electronics industries have to reach some agreement on the handling of digital movies and other content, covering both online distribution and physical media such as DVDs, that protects the rights of consumers and producers alike.

Unfortunately, this doesn't seem to be imminent. So legal trench warfare will continue to impede the progress of digital entertainment.


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