Fair Use advocates, take notice. Circuit City is apparently putting its neck on the line to provide customers with DVD transfer services. The company is offering a “DVD video transfer service” that for all intents and purposes is illegal. The company will take commercial DVDs and rip them for use on portable devices for $10 for 1 DVD, $20 for 3 DVDs or $30 for 5 DVDs. That is, until their legal department hears what’s happening.
The DMCA, of course, makes this illegal. Even if fair use clearly provides users the “right” to make backup and private transformative copies of works that they have purchased, the DMCA itself makes it illegal to circumvent encrypted access controls for any reason not allowed for by the Library of Congress. If Circuit City hasn’t received a cease and desist, they will soon.
It’s a real shame, too, because this should be a viable market.
Already Circuit City is denying the activity saying the “information on the sign is not correct.”
Obviously some poor part-time assistant manager making $8 an hour was responsible for this. The publicity has no doubt cost him his job by now. I don’t really see a story here.
I’ve actually seen this sign in a Circuit City. I won’t say exactly which location I saw it at, but it was displayed right by the registers at the location.
At first I thought the sign was odd, but the little disclosure about it having to be from an original DVD from YOUR own DVD collection made it funny. As if they could verify that the DVD actually belongs to you. The rates were steep, but when you think about the non-technically capable out there, it’s definitely a niche market people can take advantage of.
Except that it’s far from clearly illegal. It’s harmful to the movie industry’s business model, but that’s hardly the same thing, howevermuch they might like to equivocate the two.
The problem is that it’s unclear–some say deliberately so–whether consumers are “buying DVDs”, or “licensing content”. The industries have been pushing the “It’s a license!” line hard for the last few years, because if you’re licensing content when you go to the store and pick up a copy of Johnny Depp’s latest, then the movie industry has more room, through license agreements that nobody reads, to tell what you can and can’t do with that DVD. They can try to prevent you from making backup copies, showing it to more people than they want you to (or in places they don’t like), and, if they have their way, even from loaning it to anybody, criticizing it in public, or playing it on a device they didn’t authorize. Such is the nature of licenses — think Microsoft, think EULA. It’s like buying something, except that when it’s done you owe more money and you don’t own anything.
But there’s a problem with the license model, too — Namely, if you’re buying a *license* to access the content when you pick up that DVD, then you have the right to access the content, period. So if the DVD gets scratched, broken, or lost, it should be replaced for free. After all, you didn’t “buy the DVD”, you bought the right to watch the movie. The Industry chose to deliver the movie on that medium, but they can’t let a failure in the medium prevent you from having access to the movie you bought access to. This may not sound like a big deal, but try to imagine the price-hit they’d take if every time a CD or DVD went bad, they had to replace it for free. Even though more things are digital today, there’s enough physical media out there to cost a pretty penny to maintain, under a license-based sales model.
In the digital age, companies are trying hard to get the most bang for their buck by aiming for a hand-picked combination of rights and liabilities from both the product-model and the license-model. The DMCA was a huge step in the direction of allowing them to dictate how consumers may use their products without leaving them liable for providing the kinds of access that a pure license-model would.
And yes, what that Circuit City is doing is illegal according to the DMCA, one of the most hotly contested laws around, and one which almost everyone admits openly was drafted by the industries, for the industries. According to Federal Copyright Law, however, transferring content that you own from one format to another is protected under the Fair Use clause, as is making a backup copy, and sharing content at no charge with a friend. The fact that the DMCA is itself a direct violation of Fair Use in many ways has not yet been addressed, so it’s certainly premature to go calling everything that violates the DMCA but is valid according to Fair Use “illegal”.
Thanks,
PD
“The fact that the DMCA is itself a direct violation of Fair Use in many ways has not yet been addressed, so it’s certainly premature to go calling everything that violates the DMCA but is valid according to Fair Use ‘illegal’.”
I’m playing devil’s advocate here:
Since newer laws supercede older laws… if Fair Use is a concept defined in law and if a provision of the DMCA contradicts a Fair Use provision in a previous law, then the DMCA is what should apply, and the older provision is nullified or altered. The DMCA cannot be in “violation,” since it is just changing law.
Us Mikes will have to form “Devil’s Advocates LLC”… [grin]
The only way – under existing law – that it would be legal to make a copy of a DRM-protected DVD [in the US, where the DMCA applies] is to make a bit-perfect copy – so that the DRM is transferred to the copy, along with the content.
And since we already signed the WIPO copyright treaty in 2002, we are bound by this international treaty to oppose removal of DRM – so good luck getting the DCMA revoked…
http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16
http://www.wipo.int/treaties/en/ip/wct/summary_wct.html
The Treaty obliges the Contracting Parties to provide legal remedies against the circumvention of technological measures (e.g., encryption) used by authors in connection with the exercise of their rights and against the removal or altering of information, such as certain data that identify works or their authors, necessary for the management (e.g., licensing, collecting and distribution of royalties) of their rights (“rights management information”).
Circuit City’s actions constitutes infringement even without the DMCA. The whole purpose of copyright is give the copyright holder exclusive rights to make copies of his or her works. There are exceptions under fair use. However, Circuit City’s copying would not apply to any fair use exception under § 107:
1.the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
Circuit City is making those copies purely for commercial reasons.
2.the nature of the copyrighted work;
The nature would be commercial.
3.amount and substantially of the portion used in relation to the copyrighted work as a whole; and
Copying the entire movie to a different format would be as substantial as a copy could be.
4. the effect of the use upon the potential market for or value of the copyrighted work.
The potential market of selling movies in portable formats would be destroyed if this is legal.
It is definitely illegal. Anti-DRM zealots tend to mistake their opinions for the law.
Good point, SN.
I wasn’t even considering the commercial aspects of Circuit City charging a fee for doing it.
I was only thinking of the people who want to make a back-up copy of a purchased DVD.
I’m always amused when I try to think of when this “right” took effect…
Back in the day of player-piano rolls, there was no way to make a “fair use” copy… if the roll was damaged you bought a new one, or did without..
Same with vinyl records – until tape-recorders became available, books – before xerographic reproduction, CDs before CD-R, DVDs before DeCSS and DVD-R…
Fair Use isn’t our “right”, it is a limitation on the content-owner’s rights.