DMCA and Fair Use

I’d like to take a short detour from technical articles to cover some legalities regarding encrypted DVD and Blu-ray content. Now, this probably sounds like I’m going to write a lengthy disclaimer about copying encrypted copyrighted materials. I’m not. Instead, I’m going to delve into the law a bit and examine some of the rights that we’ve had in the past, but which have essentially been revoked or nullified by laws enacted due primarily to commercial lobbying efforts during the last decade.

The Digital Millenium Copyright Act (DMCA), signed into law by Bill Clinton in 1998 is one of the most significant infringements of American public rights ever recorded in history. And the true irony of it is that it has little or no effect on the problems it was originally tauted to solve–that of commercial media piracy. Because lobbyists and legislators are not stupid (I really believe this), one can only assume from this that the actual intent of the law is something different from the published intent.

The effects on consumer rights are both broad and deep. Where once we could simply set our VCRs to record broadcast content, so we could watch it later when we had time (and without commercial interruption, I might add), we could in the future be stopped cold from doing any such thing–even with broadcast content.

In 1976 a lawsuit brought to bare against Sony over the market introduction of the Betamax video recorder, by various broadcast and media content copyright holders, provided landmark legislation that nearly guaranteed the rights of the American consumer to record broadcast content for later viewing–a process also known as “time-shifting”. Sony won the case for time-shifting based on sub-section 107 of section 17 of the United States Code–more commonly known as the “Fair Use” clause of the US Copyright Act.

In early 2009, all analog broadcast will be turned off, in favor of digital broadcast, which is already happening today. To this statement, you might respond with, “Oh, that! Well, I have my 40 dollar set-top box already, so I don’t care.” But pure digital broadcast content paves the way for broadcast content encryption–all of it. Your set-top box will simply quit working in a few years. The very fact that satellite subscription services already encrypt all of their content should be a big red flag. You’ll have to subscribe to broadcast content. And, guess what–due to DMCA legislation, it’s already become illegal to descramble that content for time-shifting or other fair use purposes, because the act of copy-protection circumvention was made a new crime by that very legislation. Thus, fair use doesn’t even come into play.

Did you know you have to purchase a special TV to watch Blu-ray movies in full definition? Of course you did. Your old analog TV simply didn’t have the resolution. Everyone knows that. However, because of the careful timing of the market introduction of Blu-ray content, Blu-ray players, the HDMI and HDCP transmission standards, and HDMI-based digital video monitors (1080p televisions), most people are unaware of the fact that they can’t play their Blu-ray movies at full definition on any device that doesn’t have an HDMI input–even if it does have a component video input. If you want an end-to-end digital experience, then you’ve got to have a TV with a digital input.

After all, they purchased Blu-ray movies to see high-definition content. Why in the world would they want to then convert that picture into anything less than Blu-ray quality? Who would pay 30 dollars for a Blu-ray disc, and then watch it in DVD quality, when they could have spent half that amount for the DVD version of the same movie? No one would, but in the process of setting themselves up for a Blu-ray experience, they’ve also set themselves up with an end-to-end encrypted channel between the Blu-ray content and the very screen on which they view the content. The problem, of course comes into play for folks that don’t have the 5,000 to 10,000 bucks required to enjoy a true high definition experience at home.

If you have a high-end computer system, for example–perhaps you’re a gamer, and you’ve already laid out the money for a nice video system on your PC–you need special hardware, and software-based licenses to play your blu-ray discs on your PC in end-to-end digital definition. If you have a WUXGA (1920 x 1200) monitor, you must use either the HDMI port or the DVI-D (digital) port on your monitor. But if you do, then your monitor has to decrypt the HDCP digital signal.

This becomes much more of an issue with for-purchase on-line high-definition content–Amazon Unbox, or iTunes HD video, for example. If you do have the hardware, but you’ve lost the content licenses–perhaps you upgraded your operating system and unknowingly lost the licenses that Microsoft Windows silently stores for you–you’ll find your expensive monitor stubbornly refusing to display the HD content on your hard drive–yep, that content that you purchased. The monitor will simply refuse to decrypt any HDCP-encrypted content for which it can’t acquire a license over the HDMI cable. We’re being silently herded into a small coral, from which we’ll find it impossible to do the things we’ve always been able to do before with our legally purchased copyrighted material. Fair use has been subtly, but effectively by-passed.

Have you look around lately at the up-converting DVD players available these days? In fact, you can find all sorts of devices that will “up-convert” video from 480p (DVD quality) to 1080p–but only over HDMI. I spent 75 dollars last year on an “up-converting” DVD player. I plugged it into my component video channel, and messed with it for several hours before I found an obscure reference, at the bottom of page 57 of the manual, to the fact that the up-conversion feature only works over the HDMI input, but not the component input. I took it back to Best Buy and got my money back.

Why is this happening? Look, I’m not a conspiracy theorist. I believe I’ve mentioned this before. But when the facts are so glaringly obvious to anyone who puts just a little effort into looking around, it becomes difficult to deny the possiblity that the MPAA has an end-goal in all of these subtle changes in the electronics and media industries. Ironically, when I questioned the sales person at Best Buy about the HDMI requirement of up-converting DVD players, he laughed and said, “Of course it only works over HDMI! Didn’t you know that?” Well, now how was I supposed to know something like that when the industry has gone to such great efforts to obscure the details from the average consumer, by carefully using market timing tactics against technology “upgrades”?!

As a society, we’re essentially putting up with this garbage, because it doesn’t have anything to do with the issue dejour. By that, I mean human rights. If it has to do with gay or lesbian activities, or with pro-life vs. pro-abortion, we’re all over those topics. But if it has to do with the rights of some commercial interests vs. that of the consumer, then we feel like we’re inherently protected. Because, after all, we’re consumers of commercial products, right?. Why would the industry want to hurt us? Why indeed.

About the only freedom that we’ve had in the past to uphold our rights as US consumers toward copyright holders is the fair use clause of the Copyright Act. Fair use has been the cause of a fair amount of heartburn to copyright holders, as it doesn’t necessarily guarantee them all present and future rights. Well, they’ve finally found a way around fair use, and we’re nearly locked into it now.

The true power of fair use to uphold consumer rights is that it’s very losely defined. Rather than laying down rigid rules and guidelines that can easily be used by the executive branch, fair use provides a four-pronged test for any given situation. The test must be exercised by the judicial branch to create new legislation from the bench for each new circumstance.

Rick Cotton, a New York Times commentator wrote this about fair use as it relates to the DMCA. The entire article can be found on the New Your Times blog site:

Because fairness cannot be reduced to a set of bright line rules, whether a use is fair is determined on a case by case basis and a large body of law has developed over decades to address this issue. The Copyright Act sets out a four factor test (although other factors can be considered). The factors include the purpose and character of the use, the nature of the original work, the amount taken from the existing work and the importance of what is taken and the effect of the use on the potential market for or value of the copyrighted work. Thus, as a legal matter, a case-by-case analysis remains the standard.

Despite the loose definition of fair use, one can easily see that making a backup copy of purchased media is easily covered by these tests. Fair use tends to allow consumers to do reasonable things with media they’ve purchased, as long as those things don’t, for instance, decrease potential profit (in terms of future sales) of the copyrighted materials. Of course making a backup copy of purchased media isn’t going to hurt the copyright holder! Making a backup copy is not the same as making copies for your friends and family. Making a backup copy is not going to stop anyone who would otherwise purchase a copy from doing so in the future. In fact–quite ironically, I might add–the ability and guaranteed right to easily make a backup copy might just provoke a purchase that otherwise would not have happened.

Fair use has, in the past, protected consumers against litigation over issues like making backup copies of purchased media–until DMCA, that is. With the advent of the DMCA, it has literally become a crime to decrypt copy-protected media. Fair use doesn’t even enter the picture. Before you can make a backup copy, you have to decrypt the original content, and doing so is now simply a crime against US federal law.

Congressman Rick Boucher of Virginia wrote an article in 2002 in CNET News about his attempts to reform DMCA legislation to accomplish its originally intended goals–to stop commercial piracy of copyrighted media:

The American public has traditionally enjoyed the ability to make convenient and incidental copies of copyrighted works without obtaining the prior consent of copyright owners. These traditional “fair use” rights are at the foundation of the receipt and use of information by the American people. Unfortunately, those rights are now under attack.

In my next article, I’ll really talk about converting video formats from DVD and Blu-ray to streamable media, but I’ll remind you that it is illegal today to decrypt copyrighted materials that are encrypted. Whatever the purpose, it’s simply illegal to do it. Fair use doesn’t come into play at all. The only consolation is the fact that, regardless of the power with which they are endowed, copyright holders are not likely to prosecute you for making personal backup copies, or for converting your movies to different formats so you can view them the way you want to. The most significant reason for this is that such individual prosecution would be expensive and would have very little effect on the copyright holder’s bottom line profit margin. In other words, they’re more likely to go after the big dogs.

To wrap things up, I leave you with a reference to an article written by Fred von Lohmann, a senior staff attorney with the Electronic Frontier Foundation. Mr. Lohmann has written a very complete and very readable treatese on the subject of fair use and DRM entitled simply, “Fair Use and Digital Rights Management“. This is recommended reading for anyone interested in digging just a little deeper than average into the consumer rights ramifications of the DMCA and fair use.