May 15, 2003 2:24 PM PDT

Judge mulls DVD-copying case

SAN FRANCISCO--The judge in a closely watched lawsuit challenging the legality of DVD-copying software said she was "substantially persuaded" by past court rulings that favored copyright holders, but closed a hearing Thursday without issuing a ruling in the case.

Seven movie studios are seeking to prevent 321 Studios from selling its DVD X Copy and DVD Copy Plus programs, alleging that the products violate the Digital Millennium Copyright Act's prohibition on software that can be used to circumvent copyright protections.

U.S. District Judge Susan Illston, considering a summary judgment motion, said she had carefully read decisions in two similar cases; judges for Motion Picture Association of America v. 2600 and U.S. v. ElcomSoft said that intellectual property holders can pursue software developers who offer products that crack copyright protections.

"I am substantially persuaded by them," she told both sides.

In the 2600 case, an appellate court ordered the hacker magazine to stop posting or linking to DVD-cracking code. In ElcomSoft, a jury acquitted a Russian software company of criminal charges over a tool that cracked the security on eBooks. But before the trial, a judge refused to toss the case out amid assertions that the DMCA should not apply.

At Thursday's hearing, the studios argued that 321's software violates the DMCA by stripping antipiracy protections out of DVDs to copy them. Essentially, the studios argue that it shouldn't matter what the consumers intend to do with the DVD after they've copied it--that the mere action of breaking the code runs afoul of the law.

"They just can't traffic in anticircumvention devices," Russell Frackman, a partner with Los Angeles-based Mitchell Silberberg & Knupp who's representing the studios, told the judge.

The DMCA has spawned a number of clashes between the entertainment industry, which fears the massive unauthorized distribution of its digital works, and technologists, who fear that a crackdown on software developers will thwart innovation.

During the hearing, the judge peppered attorney Darlyn Durie, a partner at San Francisco-based Keker and Van Nest who's representing 321, with questions about the DMCA's scope.

For example, when Durie opened her statements by saying the studios are mistakenly trying to argue that 321 is offering a tool for burglars, the judge fired back, "Under the statute, all it has to be is a circumvention device."

When Durie said there's no evidence consumers are using 321's products illegally and that it's not marketed toward pirates, the judge replied, "But it's marketed to allow circumvention."

After the hearing, 321 Studios CEO Rob Semaan said he wasn't worried by the judge's questions, because he thinks Durie raised some more issues for the judge to consider. "At least, out of the gate, she was starting at their end of the spectrum," he said. "But being persuaded and bound are two different things."

During the hearing, 321's attorney argued that declaring the company's products illicit would amount to "a ban on the digital printing press," because it would ban acts of copying and excerpting film that traditionally have been legal in the non-digital world.

"A copyright holder has no right to prevent someone from engaging in fair use," Durie said, noting that the studios' position would prevent students from excerpting film clips for school projects or parents making backups of their work. "That, I would suggest, can't be right. That can't be what the drafters of the DMCA intended."

Throughout the case, the judge and lawyers from both sides talked repeatedly about the example of a movie reviewer who wanted to excerpt clips of films.

Restricting free speech?
Durie said that under the studio's interpretation of the DMCA, a movie reviewer could be banned from excerpting a digital work, a prohibition that would violate free-speech laws.

When the movie studios' attorney said that such fair use would not be banned, the judge asked, "Isn't it made more difficult? What about Siskel and Ebert?"

Frackman sidestepped the question, saying that at least one of the famous movie reviewers seems to be doing quite well. "Ebert and whoever can still talk about what they want to talk about (and) can still play clips of what they want to talk about," he said.

But he added that Ebert has no more of a right to make full copies of a movie than anyone else.

At one point, the judge called on Department of Justice attorney John Zacharia to answer some questions about the DMCA. The attorney has weighed in on the side of the studios in an attempt to defend the constitutionality of the DMCA.

Illston asked Zacharia to explain the conundrum of locking up copyrighted works behind encryption and then making the breaking of that encryption illegal, even after the copyrights on those works expire. The judge wondered if it would effectively extend copyrights to keep such works out of the public domain.

Zacharia said it would not, because the copyright had expired.

"But it's encrypted. If it doesn't stop being encrypted, it's still encrypted," Illston said, adding that such protected works still couldn't be legally copied.

 

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