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Challenging DMCA Conventional Wisdom

Most observers believe that, right or wrong, the Digital Millennium Copyright Act (DMCA) prohibits copying of DVDs, even for backup purposes, because of its Content Scrambling System (CSS) encryption technology. Now Real Networks is challenging that conventional wisdom in California, where its RealDVD product is under attack. But the litigation developments actually suggest that Real is taking a different direction. According to CNet News, a “surprise” expert witness for Real:

disputes Hollywood’s claims that the industry included in a license for its DVD-encryption technology a ban on copying DVDs while in a computer hard drive. Real argues that because it possesses a license to use CSS and because the license doesn’t prohibit the copying of DVDs in all cases, Real isn’t guilty of breaching its contract.

How Real squares its contract argument with the DMCA claims against it by the movie studios is convoluted. Without getting into a lot of detail, the gist of the DMCA prohibition on reverse-engineering is that no one is permitted to “circumvent” technological means applied to protect digital content (i.e., DRM or content protection). The anti-circumvention provisions “put the force of law behind any technological systems used by copyright owners to control access to and copying of their digital works.” That’s exactly what CSS does, as I understand the technology. The fact that a CSS license may not prohibit copying is not the same as whether it is permitted under DMCA. So this approach is a good one for Real, but almost surely will be less than acceptable to the “open commons” crowd, which has detested the DMCA standard for a long time.

If you are interested, and especially if you disagree, please tell the U.S. Copyright Office, which is handling another periodic rulemaking to define what is and is not prohibited under the statute.

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