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UPDATE: 321 Lawsuit Challenges DMCA's Most Controversial Point

25 Apr, 2002 By: Holly J. Wagner


A lawsuit brought to ensure a DVD-copying software maker's right to sell his product is an attack on the most controversial provisions of the Digital Millennium Copyright Act (DMCA), a legal expert said.

Berkeley, Calif.-base 321 Studios, which makes the DVD Copy Plus software package, sued nine major movie studios last Tuesday, alleging they are using piracy as a smokescreen to thwart the sale of the firm's software for making backup copies of DVDs on blank CD discs.

The complaint, filed in U.S. District Court for the Northern District of California, challenges the constitutionality of the DMCA and seeks a court order affirming its asserted right to continue selling DVD Copy Plus. No monetary damages are sought.

321 Studios contends the copies its package produces are less-than-DVD-quality and that it can't copy many elements of DVDs, such as menu navigation and many special features.

“Fair Use is very much threatened by this,” said said Fred von Lohmann, senior intellectual property attorney at the Electronic Frontier Foundation. ““There are lets and lots of legitimate reasons to want ot make a copy of a DVD.”

Users may want to back up their DVDs on computer drive in case their DVDs get damaged, or, as von Lohmann pointed out, to be able to play them on laptop computers without the battery drain of running a disc drive.

The complaint alleges MGM Studios, Tristar Pictures, Columbia Pictures, Sony Pictures Entertainment, Time Warner Entertainment, Disney Enterprises, Universal City Studios, The Saul Zaentz Company and Pixar Corp., acting in part under the auspices of the Motion Picture Association of America (MPAA), have threatened to sue 321 Studios and claim that the sale of DVD Copy Plus is illegal under the DMCA.

“We haven't had a chance to review the complaint yet, so I can't comment,' said MPAA spokesperson Emily Kutner.

Among other assertions in the case, 321 notes a user must have “a legal and authorized DVD player installed onto the user's personal computer” to use the copying software and that “ripping” a copy still takes four to six hours, an impractical time frame for pirates.

It also contends the DVD Copy Plus package is little more than a set of instructions for using tools available over the Internet and published in other places and the product carries an admonition to users not to violate copyrights.

“The themes here are very similar to the themes in the deCSS case in New York,” von Lohmann said. That case centers on whether or not it is legal to publish information that lets people crack the Content Scrambling System encoded into DVD content.

“It sounds like all [321 Studios] have done is write some scripts for things that are available in other places,” von Lohmann said. “There is a serious First Amendment problem involved here when people can't even tell you how to do something like make copies. You are allowed to tell people how to make a bomb or do lots of other things.”


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