November 29, 2006 | By Fred von Lohmann

Stealing Fair Use, Selling It Back to You

"Apparently, Hollywood believes that you should have to re-purchase all your DVD movies a second time if you want to watch them on your iPod." That's what I said last week, commenting on the Paramount v. Load-N-Go lawsuit, in which Hollywood studios claimed that it is illegal to rip a DVD to put on a personal video player (PVP), even if you own the DVD.

Well, this week the other shoe dropped. According to an article in the New York Times:

Customers who buy the physical DVD of Warner Brothers' "Superman Returns" in a Wal-Mart store will have the option of downloading a digital copy of the film to their portable devices for $1.97, personal computer for $2.97, or both for $3.97.

So you buy the DVD, and if you want a copy on your PVP or computer, you have to pay a second time. Despite the fact that you bought the DVD, and you have a DVD drive in your computer that is perfectly capable of making a personal-use copy. Imagine if the record labels offered you this "deal" for every CD you bought -- pay us a few dollars extra, and you can have a copy for your iPod. And a few more dollars, if you want a copy on your computer, too! As LA Times reporter Jon Healey puts it in his blog: "So from the perspective of the studios and federal officials, consumers have to pay for the privilege of doing the sorts of things with DVDs that they're accustomed to doing with CDs (and LPs and cassettes)."

This latest bitter fruit from Hollywood is brought to you by the DMCA, which treats "protected" content (like the encrypted video on DVDs), differently from "unprotected" content (like every audio and video media format introduced before 1996). Thanks to the DMCA, Hollywood believes fair use personal-use copies simply do not exist when it comes to DVDs.

Given that the Copyright Office has refused [PDF, see p. 71-72] to recognize any DMCA exemption for space-shifting, claiming that putting a DVD you own on your iPod "is either infringing, or, even if it were noninfringing, would be merely a convenience," (excuse me, Copyright Office, that's a decision for a court to make) the ball is now in Congress' court. Let's hope Congressman Rick Boucher is listening and will reintroduce his DMCA reform bill first thing next year.


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