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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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« More Editorial Board Takes on Grokster | Main | Don't Ignore Brand X Case »

March 30, 2005

Remind Me of the Reason for the DMCA Again?

Posted by Ernest Miller

One of the best commentaries on the oral argument in the Grokster case, which was before the Supreme Court yesterday, comes from Timothy K. Armstrong, a DC appellate attorney/Harvard LLM student. Read the whole thing: A Few Notes from the Grokster Argument.

I found this passage particularly interesting:

At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.

MGM’s answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one’s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM’s side of the case who don’t think that example is one bit legal. But they’ve now conceded the contrary in open court, so if they actually win this case they’ll be barred from challenging “ripping” in the future under the doctrine of judicial estoppel. [emphasis added]

We don't have the actual transcript yet, so it isn't entirely clear precisely what MGM has admitted or what sort of estoppel would apply. However, if the gist of this exchange is true, then MGM has conceding something that Hollywood has been loathe to concede and I've never, ever heard them actually concede in public, let alone in a courtroom: that format-shifting or space-shifting outside the scope of 17 USC 1008 (which basically covers DAT and cassette tape players) is a lawful activity.

Now no one ever really expected Hollywood to go after people for ripping their CDs to an MP3 player. That would be foolishness on a grand scale, since courts are likely to expressly find such actions to be legitimate fair use. So they haven't. Still, they seem to base a lot of their legal theories and rhetoric on the fact that such space-shifting is illicit, particularly with regard to DVDs.

Ignoring the DMCA for a moment, if ripping your CD to MP3s is legal fair use space-shifting, why isn't ripping your DVD to DiVX also legal fair use space-shifting? What would be the principled distinction between the two types of space-shifting? I can't imagine one.

So, remind me of the reason for the DMCA again? It doesn't stop determined infringers and mostly keeps companies from selling devices to enable all sorts of lawful uses. And, if ripping a DVD is a lawful use, how is it that copyright protection turns it into unlawful "access"?

UPDATE 1000 PT - 31 Mar 2005

Constitutional Code also addresses this concession ( MGM's Concession and the DMCRA).

Comments (7) + TrackBacks (0) | Category: Digital Millennium Copyright Act | File Sharing


COMMENTS

1. Seth Finkelstein on March 30, 2005 11:25 PM writes...

"And, if ripping a DVD is a lawful use, how is it that copyright protection turns it into unlawful "access"?"

??? - Isn't this the old fair-use/circumvention "legal hack" ?

That is, fair use IS NOT a defense to circumvention charges. The DMCA is the anti-_Betamax_ decision.

I don't like it. But my opinion doesn't matter :-(.

Permalink to Comment

2. Seth Finkelstein on March 31, 2005 03:59 PM writes...

Right (doug). This was gone over in the _Napster_ case, about space-shifting.

There's no point in my pressing this, but I don't see how anything has changed. The court ruling have basically gone that in a trade-off between fair-use and commercial advantage, fair-use loses (this is my somewhat sarcastic summary). How has that equation been changed now?

Permalink to Comment

3. Ernest Miller on March 31, 2005 04:18 PM writes...

True, it doesn't change the law per se, but it certainly undermines major justifications for the law.

Permalink to Comment

4. doug hudson on March 31, 2005 05:21 PM writes...

Maybe this was simply a concession to the 9th Circuit in the Diamond Rio case. RIAA v. Diamond Multimedia, 180 F.3d 1072 (9th Cir. 1999).

Permalink to Comment

5. some 1 on April 3, 2005 12:46 PM writes...

as for ripping your own discs...
one should be able to do anything one would desire to do with a disc that they purchased whether it be cd or dvd. It shouldn't matter what is on the disc because the person who bought it now owns the information and should be able to convert it anyway they see fit. They should also be allowed to let someone borrow this dvd even if this exchange was done digitally on the internet.

kmon hollywood, why stop here, lets go after libraries too.

Permalink to Comment

6. Brett Casbeer on April 3, 2005 05:09 PM writes...

I think their reasoning behind why DVD ripping is still illegal is because you have to circumvent a encryption mechanism to do this. I believe there are laws on the books concerning the legality of circumventing encryption mechanisms on intellectual property. But I could be wrong. Let me know

Permalink to Comment

7. mekender on April 6, 2005 05:31 PM writes...

Personally i have to wonder if the hollywood types ever would stop to think that the reason they are loosing so much money from piracy might be bacause people are tired of the price gouging. perhaps if they didnt sell a 15cent CD for $15-20 and a 40 cent DVD for $20-30 people would acutally buy. but no they just want to cry about the millions of dollars they are "loosing"

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