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Copyright Office Rules Against Backup Copies of DVDs

28 Oct, 2003 By: Holly J. Wagner

Forced trailers and copy-protected bonus materials are in and backup copies of DVDs are out under an updated rule from the U.S. Copyright Office.

The Register of Copyrights and Librarian of Congress are required to review proposed exemptions to the Digital Millennium Copyright Act (DMCA)'s anticircumvention provision every three years and make recommendations as to what uses should be exempted.

The Librarian allowed four exemptions: defeating “censorware” designed to prevent children from viewing inappropriate materials online; defeating computer programs protected with “dongles” – hardware locks – that are damaged or malfunction; computer programs and video games in obsolete formats or platforms; and electronic books that prevent use of a “read-aloud” feature that essentially denies access to the blind.

Many of the rejected proposals appear to advance the interests of movie studios and other content providers.

Watchdog group the Electronic Frontier Foundation (EFF) had sought exemptions for skipping trailers even when studios use a lock that prevents viewers from skipping them, defeating region codes and open use of movies that are in the public domain. All were denied in the rulemaking.

“[T]he proponents desire to make backup copies of their DVDs for a variety of purposes; they claim that DVDs are inherently fragile and subject to damage; they are concerned about loss or theft during travel; they wish to duplicate collections to avoid the risks and burdens of transporting DVDs, they assert that some titles are out of print and cannot be replaced in case of damage; and they claim that the duration of a DVD's lifespan is limited,” the Librarian wrote. “The proponents have not made the case with respect to fragility of DVDs, nor have they shown the making of backup copies of DVDs is a noninfringing use.”

That very question is looming before a federal judge San Francisco, who is considering whether 321 Studios' backup copying software infringes copyrights. The case has been under submission since May. 321 had no immediate comment.

A request to let Linux computer users circumvent the Content Scramble System (CSS) to play DVDs on their computers was denied, based on a finding that Linux users' needs are “outweighed by the threat of increased piracy that underlies Congress' motivation for enacting” the prohibition. The response was similar regarding requests to defeat region codes on DVDs and game software.

One proposal would have exempted bonus materials from the access controls. The Librarian found that “users have means of making analog copies of the material on DVDs without circumventing access controls” so there is no need for an exemption.

Unskippable trailers are allowed because viewers can fast-forward through them or, even when they can't, “the problem appears to be no more than de minimus and a mere inconvenience experienced with an unknown but apparently small quantity of available DVD titles.”

Still another suggestion would have allowed continuous access to time-sensitive downloads, which might have put a crimp in Movielink's time limitations.

“A consumer who enters into an agreement to pay a particular sum for the right to listen to or view a copyrighted work for a limited period of time can have no reasonable expectation of continued access after that period has expired,” the Librarian wrote.

The rules disappointed EFF.

“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 attorney Gwen Hinze. “We're disappointed that the Copyright Office and the Librarian of Congress did not recognize the significant impact the DMCA is having on millions of consumers' ability to make reasonable uses of digital media they've purchased.”

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