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Burning Backup DVDs Ruled Illegal
Commentary: Judge's ruling against DVD-copying software is another erosion of consumers' rights.
February 24, 2004: 10:02 AM EST
By Peter Lewis, Fortune Magazine

NEW YORK (Fortune Magazine) - As consumers, we assume we have the right to make a copy of an audio CD for personal, noncommercial use.

Example: I plunked down $16 for a copy of John Mayer's Heavier Things and promptly ripped it onto my computer. (That's the first copy.) Then I burned a backup CD (copy number two) that I listen to in my pickup truck. The truck is a hostile environment for CDs, so if there's a chance that the disc is going to be scratched, warped or otherwise damaged, I'd prefer it to be a copy rather than the original.
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You may be relieved to know I don't watch DVD movies in my truck, but I'd like the right to make backup copies of those discs, too.

Example: I keep the original DVD on the shelf in the video library in my media room and make a backup copy to throw in the bag when I travel, in case I want to watch it on a long flight. Better example: Parents with small kids might want to make copies of their favorite DVD movies, knowing that in the eager, grubby hands of the tots, the life expectancy of a $20 DVD often can be measured in hours.

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Last week, in the United States District Court for the Northern District of California, Judge Susan Illston ruled that consumers do not have the right to make backup copies of the DVD discs they purchase. The case was brought by a Missouri company, 321 Studios, which makes a program called DVD X Copy. 321 Studios had hoped to establish the concept of consumer fair use in the digital age, so it picked a courtroom fight with the major motion picture studios.

The studios won.

When I reviewed DVD X Copy a year ago, I wrote that the use of the software appeared to violate the Digital Millennium Copyright Act, a dismayingly misguided, anti-consumer piece of legislation passed by Congress in 1998.

In last week's ruling, Judge Illston confirmed that interpretation and gave 321 Studios a week to disable the "ripping" functions of DVD X Copy. In practical terms, she demanded that the program be withdrawn from stores by this coming Thursday.

321 Studios has indicated that it will appeal the ruling, and has asked for a stay of Judge Illston's order pending resolution of that appeal. If the stay is not granted, DVD X Copy will have to be pulled from store shelves in a few days. However, I doubt that the court or the Movie Police will sweep through the nation's Best Buys to snatch unsold copies and burn them in the parking lot.

Does this mean that I'm breaking the law when I use DVD X Copy to make a copy of my DVD for personal use? Apparently so. I guess I'll have to start training for my perp walk.

Does it mean that I'm breaking the law when I use Apple iTunes to make a copy of my audio CD for personal use? Apparently not. Why the difference?

Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, explained that the DMCA applies only to "protected" digital content, meaning discs that have been encrypted in an obviously unsuccessful attempt to prevent copying. "DVDs are really the first mass market media form that is protected," he said.

The courts have somewhat ambiguously upheld the right of consumers to copy audio CDs, LP records, and cassettes for their own use, von Lohmann said, "but when Congress enacted the DMCA, it created an entirely different set of rules for media with protected content. Congress has effectively slammed the door on copying next-generation technologies, like DVDs, SACD audio discs, and DVD-Audio."

Several music companies have experimented with copy-protected audio CDs. If consumers don't squawk, we'll probably see the anti-copying technologies become more widespread.

Assuming it is upheld on appeal, last week's court ruling marks the further erosion of the concept of fair use, and of consumers' rights in the digital age.  Top of page

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