[Harmon]

Originally Posted by HarryT

But on the other hand, the judge in the "RealDVD" lawsuit ruled that the "right" to make a personal backup copy of your DVDs didn't exist, so presumably that is equally true for other forms of media?

You do not understand the court's ruling. The judge most assuredly did NOT make the ruling you think she did.

The judge's opinion can be found at http://www.eff.org/files/filenode/Re...r%20081109.pdf

The portion of the ruling relating to consumer use begins at point 116 on page 39:

Against this backdrop, the 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,

In other words, the judge specifically said that she was NOT DECIDING EITHER WAY whether making a backup copy is "fair use."

Then she goes on to assume, for the sake of argument, that making a backup copy might be "fair use," in order to make the point that for purposes of the case she was deciding, it doesn't make a difference:

So while it may well be fair use for an individual consumer to store a backup copy of a personally-owned DVD on that individual’s computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.

The judge then quotes another court:

“[W]hile it is not unlawful to circumvent for the purpose of engaging in fair use, it is unlawful to traffic in tools that allow fair use circumvention. That is part of the sacrifice Congress was willing to make . . . .” Elcom, 203 F. 3 Supp.2d at 1125.

See the point? The consumer has the right to backup, if that is fair use, but it is illegal to sell him the tools that will let him do a backup.

And the judge quotes another court:

The DMCA prohibits the circumvention of technological measures that guard copyrighted material, but does not prohibit the downstream or end use of those materials after circumvention has occurred. See Corley, 273 F.3d at 443.

The point here is that if the consumer can get his hands on the circumvention tools, he can legally use them to accomplish "fair use."

Bottom line: this court did not decide that the right to make a backup doesn't exist.