[GreenMonkey]

Originally Posted by HarryT

I base my view on the comments made by the judge in the "RealNetworks, Inc. v. DVD Copy Control Association, Inc." 641 F. Supp. 2d 913 (2009), case.

As you know, this was a case in which RealNetworks sold a program called "RealDVD" which permitted users to make backup copies of DVD, bypassing the content scrambling system (CSS) DRM mechanism of DVDs in order to do so. The DVD Copy Control Association (DVD CCA) and RealNetworks mutually sued one another over this. The ruling of the court was that RealDVD violated both the anti-circumvention and anti-trafficking provision of the DMCA and breached the CSS licensing agreement with DVD CCA.

The important point as far as we are concerned is that the judge stated that, even though making a backup copy of digital media is a permissible "fair use" activity, it is a violation of the DMCA to circumvent a DRM mechanism in order to so, even if you legitimately own the media involved. ie, what you are permitted to do by fair use is not a "right" to the extent that you're permitted to violate the DMCA's anti-circumvention measures in order to exercise it.

And that is why I believe that removing DRM from eBooks, even eBooks that you've perfectly legitimately bought, is a DMCA violation.

Yes. This is how it works right now. This is why there is no good, legal in the U.S. DVD-to-video file type program. Because if they attempt to sell one, it is crushed by legal challenges.

See the Electronic Frontier Foundation's latest DMCA article:

http://www.eff.org/wp/unintended-con...ces-under-dmca

Here's a good breakdown of the Kaleidoscope and RealDVD cases as of late 2009.

http://www.cepro.com/article/underst...realdvd_cases/

# Products that enable copying a DVD for back-up purposes are legal under the "fair use doctrine."

Wrong, at least for now. Real (and others) rely on the so-called fair use doctrine (section 107) of copyright law (title 17, U.S. Code) that grants the "fair use" of copyrighted work. Surely making a back-up copy is fair use? Judge Patel shot down this argument of Real's, reiterating that the DMCA prohibits the "circumvention of access controls in ways that facilitate copyright infringement and for trafficking in circumvention devices that facilitate copyright infringement." As ruled, RealDVD does just that.

# It is illegal for consumers to make back-up copies of their DVDs
Maybe not. The Real ruling applies only to manufacturers of DVD-ripping products, not necessarily to those who use such devices. "[T]he court appreciates Real’s argument that a consumer has a right to make a backup copy of a DVD for their own personal use. Whether this is a 'fair use' copy is not at issue, because while the DMCA provides for a limited 'fair use' exception for certain end users of copyrighted works, the exception does not apply to manufacturers or traffickers of the devices."

Therefore, it seems, consumers are encouraged to purchase and use non-licensed DVD-ripping products from offshore companies like Slysoft that are untouchable.

UPDATE 2:06 pm 17 Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation, clarifies some of the murky waters of consumer liability for DVD ripping:

Judge Patel appears to say that fair use is never a defense to circumventing an access control, but that it can be a defense where a copy control is concerned (the DMCA treats "access control" differently from "copy control"). So it's not clear what she means on page 39, where you got the quote from. Because there is no way to make and play a back-up copy of a DVD without circumventing the "access control" of CSS. So I'm left a bit puzzled by the discussion. ...

Here is what we know: the MPAA and the Copyright Office take the position that ripping a DVD using the usual decryptor tools (Handbrake, etc) always violates the DMCA. Whether that would hold up in court in every case is hard to know. And whether other DVD copying tools might be treated differently (e.g., screen capture utilities like SnapZ) is also hard to know, because it's not clear those tools do any "circumventing."

Hopefully, we'll see fair use rights trump the DMCA in the courts eventually. But it hasn't happened yet.