Privacy Digest

Tech.view | Criminalising the consumer | Economist.com: "IS IT legal to make a copy of that DVD you've just bought so the family can watch it around the home or in the car? In one of the most watched copyright cases in recent years, a judge in northern California ruled last month that copying DVDs for personal use was legal, given the terms of the industry's licence and the way the copies were made.

The wider implication of the ruling remains clouded--not least because the DVD Copy Control Association, the loser in the case, has 60 days to appeal. But whatever the video industry may like to think, the writing is on the wall for copy protection.

Copyright is a tricky thing. It protects only the way that an author, designer, photographer, film-maker or composer has expressed himself. It does not cover the ideas or the factual information conveyed in the work.

What constitutes fair use or an infringement is trickier still. Much depends on the purpose and character of the borrowed material's use. Limited reproduction for the purpose of criticism, comment, news reporting, teaching, scholarship and research is considered fair game. But the wholesale repackaging of the content for commercial use is a flagrant infringement.

In America, the Audio Home Recording Act of 1992 made it legal for people to record copyrighted radio broadcasts for personal use. But while the act said nothing about making digital recordings, ripping copyrighted music tracks off CDs and storing them on an iPod has become an everyday occurrence. Despite the number of iTunes downloaded for a fee, Apple would be in trouble if people were prevented from transferring legitimately owned CDs to their iPods. The software Apple gives away to iPod customers is designed to let them do just that.

Most people think it ludicrous that they can't do the same with the DVDs they own. Now it seems, despite squeals from the movie industry, the law is finally moving in the video fan's favour.

The issue in the recent case was whether Kaleidescape, a maker of digital 'jukeboxes' that store a person's video and music collections and distribute the entertainment around the home, had breached the terms of the DVD Content Control Association's CSS (content scrambling system) licence.

A Kaleidescape server stores digital content ripped from CDs and DVDs on its hard drive. The content is then encrypted and fed to various screens and speakers around the home by a secure cable. Kaleidescape claimed that content distributed this way was even safer than it was on the original polycarbonate disks. The judge not only agreed, but couldn't find any breach of the copy-protection licence either.

If the case ends there, to all intents and purposes the notion of fair use would appear to apply to DVDs as well as CDs. The movie industry, which nowadays depends as much on DVD sales as on box-office receipts, still seems to think that making life difficult for its customers is a recipe for success.

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