Brian W. Carver -- Share Alike

You can't watch DVDs you bought

Think hard about this:

"This Court agrees with the Corley court that the purchase of a DVD does not give to the purchaser the authority of the copyright holder to decrypt CSS." - US Dist. Ct. for the Northern Dist. of California in 321 Studios v. MGM (2004).

Umm. Boy is that dumb. If the purchaser of a DVD does not have the authority to decrypt CSS, which is absolutely necessary to view the contents of the DVD, then that means the purchaser of a DVD does not have the authority to view the contents of the purchased DVD. What are we buying, then? Expensive coasters?

The court actually claims that a DVD player itself, because it is licensed, has the authority to decrypt CSS, but a purchaser of a DVD does not. Somehow Judge Illston doesn't see the absurd consequence of this view that your DVD player can watch all the DVDs it wants. You just can't join in.

We're supposed to be happy that "321 itself stated, users can copy DVDs... by non-digital means." So, we are supposedly permitted to make non-digital copies. But this seems contradictory. If CSS is a copy-control mechanism, and if circumventing CSS is not allowed by any means other than one's licensed DVD player, then there's actually no allowable means of making that non-digital copy. Using one's eyes, one's memory, or a video camera on a tripod aimed at the TV (none of which are licensed by MGM) all seem to be circumventions of CSS. But, remember, circumventing CSS is supposedly illegal. So, is the court just contradicting itself? How is one supposed to make these legal copies?

Imagine, for instance, something potentially sold at Radio Shack that would connect between the DVD player and your TV screen and that would make a non-digital copy of the DVD onto VHS. On the one hand, something like this is supposedly legal. But, it's hard to see how such a device is significantly different from the very function of 321's software which is now illegal. Sure, 321's copies are digital, but the court doesn't claim to be making a digital/non-digital distinction dispositive. Oh, by the way, that device that connects between your DVD player and TV and makes non-digiital copies onto VHS is called a "VCR." That's right. On one reading of this opinion, your VCR is now illegal.

To avoid these absurd consequences the court would have to say that if you use a licensed DVD player to decrypt CSS and then some subsequent device merely makes a copy (probably even a digital one) then that would be legal. (Any electronics entrepreneurs follow that point? I'm dashing something off to the patent office right now!) The point is that to avoid the absurd consequences sketched above, the court has to be interpreted as saying that it's the unlicensed decryption of CSS that makes 321's software illegal, and nothing else. (The opinion actually says 321 could sell a version of their software that copies but doesn't decrypt.)

But this is a silly way to look at things. We don't give licenses to inanimate objects like DVD players. We give licenses to people. So it's just nutty to say that the purchaser of a DVD doesn't have an implied license to decrypt CSS. If Toshiba is licensed to make me a DVD player that decrypts CSS and is also licensed to sell me that player, then the part of the license that allows Toshiba to sell the player logically must allow the purchaser of that player the right to use the player for its intended purpose. Similarly, if MGM sells me a CSS-encrypted DVD, then they logically have to also be giving me a license to decrypt the contents of that DVD. Otherwise they're committing widespread fraud by selling useless merchandise. (Which may be true on independent grounds!)

This court's opinion is an unfortunate blow to fair use and even more unfortunately aggressively supports the DMCA. You've got seven days to buy this software (until February 26) unless 321 can get a stay of the injunction.

Posted by Brian at February 22, 2004 12:28 AM | TrackBack