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Judge Sides Against 321 DVD Copying Company

20 Feb, 2004 By: Holly J. Wagner

Hollywood studios were claiming victory today after winning a court order to stop the production and sale of 321 Studios' DVD copying software, a battle that has been in the courts for nearly two years.

“Today's ruling sends a clear message that it is essential for corporations to protect copyrighted works while facilitating the enjoyment of entertainment offerings through new digital technologies,” said Jack Valenti, chairman and CEO of the Motion Picture Association of America, which pressed the case on behalf of its studio members.

Judge Susan Illston sided with the studios in finding that 321's DVD copying software violates anticircumvention provisions of the DMCA and ordered that the company stop “manufacturing, distributing or otherwise trafficking in any type of DVD circumvention software.”

The makers of DVD and game copying software immediately vowed to appeal the ruling, which has been expected since the case was heard last May. 321 founder and president Robert Moore reiterated his earlier statements that he will pursue the case to the U.S. Supreme Court if necessary.

“There is no difference between making a copy of a music CD for personal use and making a backup of a DVD for personal use,” Moore said. “We are so firm in our belief in the principle of fair use that we will appeal this ruling immediately and we will take our fight all the way to the Supreme Court if that's what it takes to win.”

321 initiated the legal action in April 2002, when the company asked the court to declare that its software merely facilitates fair use and does not violate the Digital Millennium Copyright Act (DMCA). Attorneys for the company sought to show that this application of DMCA the violates the First Amendment by preventing 321 from distributing a particular kind of speech, in this case a computer code.

But the judge ruled against that argument and 321's contention that its software supports fair use, finding that First Amendment and fair use claims are defenses in copyright infringement cases but are not a proper response to the counterclaims in the 321 case.

The decision does not end the case. Ileston also allowed a 321 user, Larry Davis, status to intervene in the case, which may give the 321 side standing to pursue or respond to some claims that the company itself could not. She also dismissed claims against 321investor Victor Mattison, finding that his 25 percent ownership of the company is passive and not directly involved in the studios' claims.

321 has seven days to get a stay of Ileston's order ahead of an appeal or to remove its products from sale. The company said it will continue to sell its software after the deadline but will only sell a version that does not include a “ripper,” the software code that facilitates the Content Scramble System (CSS) keys.

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