The MPAA DVD FAQ:

The following is a summary of the arguments presented by the MPAA DVD FAQ, along with their responses by the OpenLaw DVD forum.

The OpenLaw DVD Forum is an Internet discussion list dedicated to the subjects related to the defense of DeCSS.  (Universal v. Reimerdes)

The OpenLaw DVD web site can be viewed at http://www.openlaw.org/opendvd.

The participants of the OpenLaw DVD Forum find the Motion Picture Association of America's FAQ completely misleading, and have created this FAQ in an effort to fight the misinformation, and hopefully spread a little reality.

If you would like, you can skip the introduction and go right to the FAQ questions.


Introduction:

People hate being deceived - and chances are if you've visited the MPAA's FAQ, you've seen quite a bit of misinformation - and you may not even know it!

The MPAA likes to portray everything as a struggle to prevent piracy.   Unfortunately, they completely gloss over the public consequences of their efforts.

Members of the OpenLaw DVD forum are very concerned about the implications of banning so called "circumvention technology", and you should be too.   The reason for this is simple, though not obvious.

The technology exists today to make digital devices act in just about any way the programmer wants it to.  Since technology is making its way into our everyday lives, more and more things will become digital. Electronic books, movies, streaming content via the Internet - just about everything is digital now or soon will be.

The problem arises when you want to use the work in a way that is lawful, but not in the best interest of the company that made it.  The following are some examples of lawful use of copyrighted meterials that have been repeatedly upheld in our court system:

You might want to criticize a particular  "e-book" by copying excerpts to support your argument.   If the e-book doesn't allow copying, you've got a problem.

Or perhaps you may want to copy a DVD disk onto VHS tape so that you can watch a movie you own in a room that only has VHS available.   Of course, the movie industry would rather have you buy a second copy of that movie, even though you have the legal right to transfer the one you own to a different media.   Plus that DVD player you bought is designed to output a scrambling signal (macrovision) to your VCR to prevent your DVD from being copied to VHS at all.  You're stuck.

Or maybe you just want to copy a DVD you own so that if one copy gets scratched, you still have another copy.  Under previous long-standing copyright law, you were free to make this copy in its entirity.  Now, under Judge Kaplan's ruling, this may be illegal, depending on how you do it.

These examples illustrate the fundamental problem:

In essence, the digital technology has become the police force, the courts, the trial, the verdict, and the sentence - with no chance to ever appeal.   The technology doesn't obey the courts, it only functions as it was designed.  It doesn't matter how many times the Supreme Court upholds the rights you have, you will still be prevented from exercising your rights by the device itself, operating as designed!

I suppose you could try to create your own device that does not have these restrictions...   Or can you?    The DeCSS court case (Universal v. Reimerdes) was filed against 2600 magazine for publishing the instructions for doing just that - making a DVD player without any restrictive "locks" placed on it.

Of course, it would really be silly indeed if the threat to our rights only involved what we can or cannot do with a movie.  Many members of the OpenLaw DVD Forum do not even own DVD playing equipment!   There is a much larger threat here.   As society moves more and more towards using digital technology - these "technological protection measures" will be used more frequently.

The problem is that unless the process of circumventing "technological protection measures" is legal, you will be powerless to stop the technology from taking away your rights.   If "circumvention" is illegal, then you cannot modify technology to restore your rights, and you cannot create technology that will allow you to exercise your rights.

This is like having a public library surrounded by a private fence - the library may be open to the public, but the public has no way of getting there if there is a law against climbing fences.

If the lower court's opinion stands, and is affirmed by the upper courts, soon you will see digital protection functions built in to everything you buy.   It's a "free meal" ticket for many industries.   It allows the industries to have absolute control over the products they sell - a concept which destroys the traditional definition of ownership.   Companies could hold your own property hostage behind technology in such a way that you can only use your property in the way which they want you too.  This is absurd.

Unfortunately, the process has already started.   If you purchase a DVD in a foreign country, technology will prevent you from playing that DVD using equipment purchased in any other country.   License agreements are being used right now to require all DVD player manufacturers to place these artificial digital "locks" on the technology.

The copyright clause of the US Constitution grants to authors and inventors a monopoly on their works (i.e. to hold a "copyright") for a limited time.   After this time expires, a work becomes owned by the public (i.e. "public domain"), and all people are free to enjoy and build from it.   If there is anyone left who still thinks the movie industry will - through it's own free will - regulate its use of technology to prevent abuse, you're already too late.   Despite the copyright clause's mandate that all things fall into the public domain after a limited time, there is no technological mechanism in the DVD system to EVER unlock a DVD after its copyright has expired.

I hope this FAQ rebuttal helps you see some of the deeper issues involved, so that you can make a more educated choice about your future.   I know it's long, but the outcome of this conflict will shape how you can use digital information in the future.  It's definitely not as simple as the MPAA would have you believe.

Introduction by Tim Neu  tneu@visi.com


The Motion Picture Association of America FAQ Questions:

1.  What is the MPAA and who are the members?

2.  What is the DVD-CCA?

3.  What is the DVD Content Scrambling System (CSS) and how does it work?

4.  What is DeCSS, and how does it work?

5.  What is the Digital Millennium Copyright Act, and how does it apply to DVDs?

6.   Why is the Motion Picture industry opposed to distribution of the DeCSS software?

7.   Doesn't the DMCA allow reverse engineering for compatibility, for example to allow playing of a DVD on a Linux operating system-driven personal computer?

8.   Why is piracy such a major concern?

9.   There seems to be extraordinary concern about piracy at this time. Why?

10.   How can the motion picture industry expect to control piracy in the digital age?

11.    Some say the CSS encryption was easy to hack, and therefore the industry is at fault. Is this true?

12.   Are there other software packages besides DeCSS available for decrypting DVD movies, and if so, is the MPAA attacking them as well?

13.   I hear that DVD pirates don't even need DeCSS to make illegal copies. Pirates can easily obtain hardware that can copy DVDs. So why are you taking action?

14.   If I can make an audiocassette copy of a CD, or a VHS copy of a television broadcast, why shouldn't I be able to make a copy of a DVD that I own?

15.   It costs twice as much to make an illegal copy of a DVD as it does to buy a legal one, so why is the MPAA worried about DVD piracy, when it's not financially viable?

16.   Some computer users say they only want to use DeCSS to view their DVDs on computers that use the Linux operating system. Windows- and Macintosh-based computers can play DVDs, so is it fair to deprive the Linux community?

17.   Don't consumers have the right to view their DVDs on the operating system of their choice?

18.    Do the MPAA lawsuits against those who are distributing DeCSS violate the First Amendment? Doesn't the right to free speech include the right to distribute computer code?

19.   Does this "hack" affect consumers in any way?

20.    What does the motion picture industry hope to accomplish with its lawsuits against people distributing the DeCSS software?

21.    Have the defendants actually used DeCSS to make illegal copies?

Arguments and citations

MPAA's analogies
Legal status of DeCSS
Limitations required by a CSS license
Rights granted to the owner of a DVD movie.
Fair Use doctrine
First Sale doctrine
Copyright Expiration

Credits

1.

Q:      What is the MPAA and who are the members?

A:      The MPAA is the trade association for the motion picture industry. The members of the MPAA are: Buena Vista Pictures Distribution, Inc. (The Walt Disney Co., Hollywood Pictures, Touchstone Pictures, Miramax Films Corp.);  Metro-Goldwyn-Mayer Studios Inc. (Metro-Goldwyn-Mayer Pictures, Unites, Miramax Films Corp.);  Metro-Goldwyn-Mayer Studios Inc. (Metro-Goldwyn-Mayer Pictures, United Artists Pictures, Orion Pictures); Paramount Pictures Corporation; Sony Pictures Entertainment Inc. (Columbia Pictures, TriStar Pictures); Twentieth Century Fox Film Corporation; Universal Studios, Inc.; and Warner Bros., a division of Time Warner Entertainment Company, L.P.



As far as is known, this question has been answered correctly by the MPAA.

2.

Q:      What is the DVD-CCA?

A:      The DVD Copy Control Association (DVD CCA) is a not-for-profit corporation with responsibility for licensing CSS  (Content Scramble System) to manufacturers of DVD hardware, discs and related products. Licensees include the owners and manufacturers of the content of DVD discs; DVD replicators, creators of encryption engines, hardware and software decryption devices, and manufacturers of DVD players and DVD-ROM drives.



As far as is known, this question has been answered correctly by the MPAA.    However, the function that the DVD-CCA performs may not necessarily be legal.  Anti-trust law prohibits certain types of cooperation among companies in a given industry.

3.

Q: What is the DVD Content Scramble System (CSS) and how does it work?

A:      CSS is the copy protection system adopted by the motion picture industry and consumer electronics manufacturers to provide security to copyrighted content of DVDs and to prevent unauthorized copying of that content. CSS is akin to the lock on your house.

Anticipating what digital technology meant for anti piracy efforts, the film industry relied on the security provided by CSS in manufacturing, producing and distributing to the public copyrighted motion pictures in DVD format. Those motion pictures, many of which involved investments of tens and even hundreds of millions of dollars, were distributed on CSS-protected DVDs.

CSS allows consumers to enjoy the benefits of digital entertainment because the motion picture industry is able to issue their films on DVD while at the same time preventing massive piracy of their copyrighted works. De-encryption destroys this protection, which is why distribution of de-encryption devices were formally prohibited in the Digital Millennium Copyright Act.


 

OpenLaw's answer to the question:

Technically speaking, CSS is just an encryption layer that enshrouds the true native format of DVD which is MPEG-2 and AC-3 (both of which are essentially open  formats for high quality video and audio).  A DVD may contain other data as well.  But in the end, all it does is change one representation of bits into another.

See http://www.cssfaq.org/dvd-discuss-faq.html#ss1.1.2

OpenLaw's answer to the MPAA:

CSS is access control. It has incidental function as copy control in very limited scenarios, but all those scenarios involving getting access to the work --- something that is also necessary to play the disk.

CSS is designed to impose a legal obligation (through the signing of a CSS license agreement) on developers of DVD technology, so that they design functionality restrictions into their products.

1. CSS may not be copy protection in the legal sense of 1201(b), since it authenticates a "device" rather than a user.
2. CSS does not prevent copying because CSS is not an attempt deal with copying per se. It is access control.
3. CSS, as a side effect of being an access control scheme, does hinder some very specific modes of copying.

The existence of CSS has the effect of putting restrictions on the entire DVD player industry.   By restricting access to CSS technology only to those who agree to their restrictions, they control the industry, and can prevent devices from being capable of established fair-use rights such as media shifting.

4.

Q:      What is DeCSS, and how does it work?

A:   In late 1999, a small group of hackers in Europe worked to descramble the CSS encryption system for DVDs and created an unauthorized software utility commonly referred to as DeCSS. A computer that has the DeCSS utility can use it to break the CSS code on DVDs making it possible for motion pictures in DVD format to be decrypted and illegally copied onto a computer's hard-drive for further distribution over the Internet or otherwise, in perfect, digital format. DeCSS is akin to a tool that breaks the lock on your house.



OpenLaw's Answer to the question:

For a description of DeCSS, see http://www.cssfaq.org/dvd-discuss-faq.html#ss1.1.1

OpenLaw's Answer to the MPAA:

This answer is propaganda, and the "lock pick" analogy simply doesn't fit.


About the Answer:

U.S. law does not define such a thing as an "authorized" software utility or DVD player. It is certainly true that neither the MPAA nor the motion picture studios  "authorized" the creation of the DeCSS program, but they have no right to make such an authorization in the first place. Their claim is extraordinary:  organizations which make movies think they can regulate who makes a machine or program to play those movies.

The US Supreme Court has already told the movie industry that they cannot control both the movies being shown and the devices used to show them.  See United States v. Paramount Pictures, Inc, 334 U.S. 131 (1948), a case in which the supreme court ruled that the movie industry could tie the distribution of its movies to the control of video projectors.

The statement that DeCSS makes it possible for DVDs to be "illegally copied" is both specious and misleading. Specious because what DeCSS does is absolutely necessary to watching CSS-scrambled movies on a DVD. Misleading because "making it possible for motion pictures ... to be decrypted and illegally copied onto a computer's hard drive for further distribution ..." claims:

1. That copying to your own hard drive is illegal.  If the copying is done for personal use after media-shifting, it would be legal.
2. The further distribution might very well be illegal, *but this has nothing to do with DeCSS per se*.   Any DVD player has the potential to be used for this purpose. For example, there were "ripper" programs that grab a DVD movie and store it on the hard drive long before DeCSS came on the scene.

For a factual description of how DeCSS works, see http://www.cssfaq.org/dvd-discuss-faq.html#ss3.2.1

How does DeCSS work according to the MPAA? It works by allowing copying "for further distribution" - as though what happened to the copy later were intrinsically related to the making of the copy.

This entire answer is based on an assumption - or, less an assumption than an agenda. That agenda is to make DeCSS seem as illegal as possible, to make it seem that it has only illegal uses. Not only does DeCSS not have only illegal uses, it has substantial legal uses, as a reverse engineering tool for example; its use in this regard has been documented: DeCSS has contributed to the creation of a Linux DVD player by the LiViD open source group (LiViD stands for Linux Video and DVD). This is not only a fact, it is a fact the MPAA wants to persuade everyone to ignore.
 

In addition, the MPAA's definition of "DeCSS" changes, depending on what the MPAA would  find convenient at any given time.

In the Preliminary Injunction, the MPAA uses a very broad definition of  "DeCSS", which includes any software (not written by them) that has the ability to decode CSS.

However, here in this FAQ, the MPAA, using a very narrow definition of "DeCSS" dismisses the validity of DeCSS use in Linux, stating that "The DeCSS utility was written for Windows-based software."

5.

Q:      What is the Digital Millennium Copyright Act (DMCA) and how does it apply to DVDs?

A:    The Digital Millennium Copyright Act was passed by Congress on October 12, 1998, and signed into law two weeks later by President Clinton. The DMCA is designed to implement World Intellectual Property Organization (WIPO) treaties signed in December 1996 in Geneva.

The Act strengthens the protection of copyrighted materials in digital formats, such as motion pictures on DVDs, by outlawing the manufacture, importation or distribution of devices, programs or services that circumvent technical protection measures that restrict access to or prevent infringement [copying] of copyrighted works. Thus, it prohibits anyone from distributing a software utility designed to circumvent the CSS technology used to protect DVD software.

These provisions of the DMCA formed the basis of the motion picture industry's successful lawsuit seeking an injunction against three Internet websites in New York that were posting the DeCSS utility for download by visitors to these sites. DeCSS fits the definition of an unlawful copyright circumvention device as defined in the federal Digital Millennium Copyright Act (DMCA).



OpenLaw's Answer to the question:

The DMCA goes FAR beyond the requirements of the WIPO treaties.   The DMCA was primarily written by intellectual property companies - the MPAA, RIAA, and other media lobbyists.

For a more detailed analysis of the DMCA's provisions, see http://www2.linuxjournal.com/articles/currents/012.html

OpenLaw's Answer to the MPAA:

 The Digital Millennium Copyright Act is very new law that has never been tested in court.  It appears to have some clauses that may pertain to this case including the right to have and/or protect access controls, the protection of reverse engineering for legitimate uses, as well as protection of fair use rights.  It will remain to be seen what role this act takes in the courts.  This act is considered very controversial as it seems to have significantly extended a  copyright holder's rights even beyond what he/she might want.  The case of the MPAA against Eric Corley a/k/a Emmanuel Goldstein and 2600 looks like it may be the first real test of the act if the prosecution tries to rely on it.

6.

Q:      Why is the motion picture industry opposed to distribution of the DeCSS software?

A:      The motion picture studios' position on copyright protection is not a new one. Copyright protection is a principle established in the United States Constitution and has long been recognized as essential to promote the creation of all forms of new books, magazines, newspapers, computer programs, motion pictures, television programs and other works from illegal use and copying.

In order to protect these rights in the least intrusive manner, motion picture studios have used copy protection methods on their videocassettes such as Macrovision. Similarly, for example, satellite television services use encrypted signals to prevent their signals from being received by non-subscribers. The motion picture industry similarly always has been opposed to, and has pursued those who distribute, devices that break copy protection including illegal "black boxes" to defeat Macrovision and illegal "smart cards" that allow illegal access to satellite television.



OpenLaw's answer to the question:

The MPAA is opposed to the distribution of DeCSS software because DeCSS allows everyone to see how CSS works.  This is very dangerous to them, because now companies don't necessarily need to license CSS technology (and be subject to the license's restrictions) in order to make DVD players.   What does this mean for you?

It means that companies will be able to make DVD players that have the features YOU want, not the features the MPAA wants.   It means you might be able to continue to use your long-standing fair use rights with new digital technologies.

OpenLaw's answer to the MPAA:

Going after DeCSS is hypocritical since it does not have anything to do with copying DVDs.  Other utilities such as DVDRip (which is much older than DeCSS and has been known about for much longer) are clearly tools whose only purpose is to copy DVDs, yet the MPAA has not pursued any action against sites which offer this utility.

This is all about appearances for the DVD-CCA and MPAA.  In order to entice movie studios into supporting the DVD format, the DVD-CCA has to convince those studios that CSS allows them to make more money from selling their content on the DVD format, than say VHS.  For example, since a DVD can only (in theory) be played in the region that it has been programmed for, a black market which is based on distributing a DVD from one country zone to another in which the DVD in question has not been released    (which is very typical for VHS piracy) can not happen.  The DVD-CCA has told the studios that CSS prevents this, which is what has convinced the movie studios to adopt the DVD format.

Of course, now that DeCSS exists, CSS has been severely undermined.  However, the fact that it has spread regardless of the injunction will not stop the DVD-CCA from pressing with the lawsuit.  This is because when the movie studios complain to the DVD-CCA about the spread of DeCSS, the DVD-CCA needs to be able to say something like "we are pursuing a court case against them, and intend to shut down every last one of these illegal sites; we've won an injunction against the most popular ones already, and we  have the DMCA on our side -- we will prevail in the end, and CSS will be protected."

They simply can't drop the case.  It doesn't matter how bad it looks for their side.  It doesn't matter how obviously they are wrong.  And it doesn't even matter to them that this will be the case the strikes down the DMCA.  They have a much more important (to them) goal, and that is to keep the movie studios happy, and keep them using their format.

7.

Q:      Doesn't the DMCA allow reverse engineering for compatibility, for example to allow playing of a DVD on a Linux operating system-driven personal computer?

A:     The DMCA does allow reverse engineering. However, the reverse engineering provisions in the DMCA were never intended to enable anyone to circumvent technical protection measures (TPMs) for the purpose of gaining unauthorized access to or making unauthorized copies of copyrighted works.

The DMCA does allow a lawful user of a computer program to circumvent TPMs to ensure that the program can work with other programs (interoperability); and, with strict limitations, the research may be shared with others, as long as it does not infringe the copyright in the original or a related work. However, reverse engineering is not permissible if there is a readily available commercial alternative for that purpose. In this case, there exist MANY commercially available DVD players.



OpenLaw's Answer to the question:

One of the critical points in this case is whether the owner of a legally purchased DVD has a right to play it. When the MPAA say, "the provisions in the DMCA were never intended to enable anyone to circumvent technical protection measures" they are begging the question. If no one can build their own CSS-enabled DVD player without the permission of the studios or their cut-out (the DVD-CCA), your "right" to watch the movie you bought is contingent on using a licensed player.

OpenLaw's Answer to the MPAA:

The only correct statement in this answer about the reverse engineering exemption in the DMCA is the first sentence. Nearly every other statement contains misrepresentations of the law.

The DMCA allows reverse engineering; the pertinent clause is 1201(f), which has  four parts. We urge the reader (and the MPAA) to read the law. Let's review what it actually says.

Let's start with (f)(4), which defines interoperability. "For purposes of this  subsection, the term ''interoperability'' means the ability of computer programs  to exchange information, and of such programs mutually to use the information  which has been exchanged. ". When computer programs exchange information, each keeps a copy of it. Nothing indicates that this information  may not be the data associated with a copyrighted work.

OK, so doesn't this copying have to be authorized? Can you circumvent TPMs to  make 'unauthorized' copies and gain 'unauthorized' access?  On this point, the  MPAA is dead wrong. Let's read the statue. The exact language, which is found in  (f)(1), (f)(2), and (f)(3) is that "notwithstanding" the clauses outlawing access circumvention of TPMs and distribution of means of TPM circumvention, reverse engineering is permitted to the extent that it does not "constitute infringement under this title." It is well settled law that only certain kinds of copying require the explicit authorization of the copyright owner, the rest are considered "fair use". If you have paid for a copy of the work, your ability to make fair use is greatly expanded. 'Format shifting' a movie, in its entirety, would be fair use relying on the precedent of Sony v. Universal Studios, which found fair uses for VCRs.

In addition to this rather embarrassing error, the MPAA also makes a few more  misrepresentations of the DMCA.

For example, the MPAA implies that the RE exceptions only apply when "a lawful  user of a computer program" engages in reverse engineering "to ensure that the program can  work with other programs". This is wrong in that they incorrectly attempt to  restrict the exception by asserting that the reverse engineered program must be  among the interoperating ones. The statue says otherwise in each of (f)(1,2,3):  one need only enable "interoperability of an independently created computer  program with **OTHER** programs" (emphasis added). The reverse engineered  program does not itself have to be one of the interoperating programs. The MPAA  again neglects the case where the exchanging of information constitutes a fair use passing of their works between 'other' programs not under their control.

Another misrepresentation is the 'strict limitations' the MPAA refers to. They  don't state what they are, because actually they're not so strict. The  limitations to creating (f)(2) and distributing (f)(3) tools for circumventing  TPMs are simple. You must "enable interoperability" in a way that does not  "constitute  infringement". Note also that (f)(1) isn't needed yet, because it  grants an exception to (a)(1)(A), which isn't effective until Oct. 2000.

Finally, the MPAA also states that reverse engineering is not permissible when other "readily available commercial alternatives" to the act of reverse engineering exist - such as a licensed player. This is, quite simply, wishful fabrication. Nowhere does the DMCA state any such restriction. Reverse engineering is legal because you can't copyright ideas. The MPAA's made up standard contradicts the entire spirit of the foundation of copyright.

8.

Q:      Why is piracy such a major concern?

A:      Piracy has always been a problem facing the creative arts, going back to the origins of copyright law in the 1700s. Concerns about unauthorized use of creative works underlay the origins of copyright law in the 1700s. Artists,  writers and performers must be protected from unauthorized use of their works if they are to support themselves from their art and continue produce and distribute new works. The motion pictures and television shows that the film industry produces are the result of the efforts of hundreds of thousands of individuals it employ [sic] - from grips to gaffers, to writers, actors, directors, stunt people, carpenters, and film editors. Distribution of their works involves the efforts of distribution company personnel and the many employees of theaters, video stores, television networks and stations, advertising agencies, newspapers, duplicating facilities, shipment companies, etc. Each individual?s livelihood depends on the ability to sell these creative products, not to have them stolen.

      Unabated, piracy can destroy the legitimate marketplace for consumers and stop the development and distribution of new works. In some areas of the world, video pirates have driven legitimate video merchants out of business, leaving consumers with no choice but to buy inferior pirated versions of motion pictures.



OpenLaw's answer to the question:

Neither side disagrees with the basic concept that piracy is illegal.  It importance is obvious as it prevents an artist/inventor from owning their intellectual property, which would stifle the world economy if not protected.

OpenLaw's answer to the MPAA:

Being a copyright owner does give you the right to protect your works - however, it does not give you the right to dictate each and every thing that happens to that work from creation to destruction.

Indeed, it is vitally important to our society that copyright owners' rights are NOT exclusive.     Copyright law allows a portion of material to be used "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research".   (see the section on fair use)

The MPAA's CSS license restrictions make it impossible for any company to release a DVD player that is capable of allowing these rights.

In addition, copyright law dictates that works are not protected forever.  At a specific time,  a works copyright expires and the work becomes part of the public domain.
The MPAA has made no provisions to "remove" CSS encryption from DVDs after this occurs.

Thus DeCSS has, among its many uses, the ability to restore lawful  "fair use"  rights to copyrighted works - as well as the ability to grant access to a work whose copyright has expired.
 

9.

Q:      There seems to be extraordinary concern about piracy at this time. Why?

A:      Digital technology allows perfect copies of motion picture to be made, not just from original masters, but from copies. The 1,000th copy of a digitized movie is as pure as the original, whereas in analog formats, each successive copy is degraded in quality.

The development and distribution of DeCSS may lead to widespread digital video piracy. Currently, the impact of hacks such as DeCSS is limited by the amount of time needed to download a full-length motion picture over the Internet.  However, as the bandwidth of the Internet increases rapidly, the ability increases for pirates to create perfect, illegal digital copies of movies from DVDs using the DeCSS utility and to post those copies on websites for download by Internet users all over the world.



OpenLaw's answer to the question:

Technology does allow communication to take place much faster than ever thought possible.    While not practical now, in the future it is entirely possible that exchanging the entire contents of a DVD over the Internet will become practical.

The MPAA has the court system at its disposal to prosecute copyright infringement.  Instead, the MPAA has constructed technological barriers preventing ANY access of copyrighted works, without their terms.

OpenLaw's answer to the MPAA:

One has to wonder how much the MPAA truly needs access protection measures to protect their works.  Music CDs are unprotected digital medium, however they continue to experience unprecedented sales.    In any event, preventing piracy is not a good enough reason to deny the public fair use of copyrighted medium.

The stated purpose of the copyright clause is to promote progress.  Certain exclusive rights are granted to the copyright owner with the aim of promoting progress.  The MPAA position seems to be (protestations to the contrary not withstanding) that it can do more or less anything to protect exclusive rights, even if that means hampering progress by restricting access to works that have already been published.
 
 

10.

Q:      How can the motion picture industry expect to control piracy in the digital age?

 A:     The motion picture industry, and indeed the entire creative community, including music, publishing, and fine arts, have been battling piracy and copyright violations for decades, in the United States and internationally. We can never abandon the fight to preserve intellectual property rights, just because it is difficult. The stakes are too high. Should law enforcement stop fighting crime just because efforts are difficult?



OpenLaw's answer to the question:

The MPAA might want to use new technology to its own advantage!   Many people, given the choice, would pay for the delivery of movies to them via computer.   Even though current bandwidth limitations prevent a DVD from being copied over the Internet practically at this time,  people would probably pay for reduced-quality "compressed" versions of movies.

OpenLaw's answer to the MPAA:

The MPAA would have you believe that fighting piracy was impossible, without their technological protections.   Nothing could be farther from the truth.   Piracy has been prosecuted successfully with existing copyright law for years.

The MPAA's problem is that it doesn't stop at preventing piracy.  Their technological protection measures prevent ANY access to their copyrighted works without agreeing to the restrictions of a CSS license.

11.

Q:   Some say the CSS encryption was easy to hack, and therefore the industry is at fault. Is this true?

A:      There is no such thing as a perfect encryption system that is immune to hacking. Newer and tougher copy protection systems are in development, but we acknowledge that determined thieves will attempt to bypass these protections as well.

However, the fact that a lock is possible to pick is no excuse for burglary. To the same effect, the fact that circumvention of copy protection devices is possible does not make these actions legal. If a home-owner employs an inexpensive alarm system, is the burglar any less accountable for his crime than the one who breaks into a home with an expensive, sophisticated system? Individuals still should be held to account for their invasion of others' property and their refusal to observe the law.

OpenLaw's answer to the question:

The strength of the CSS algorithm really has no bearing on this case.   By preventing all access to DVDs without CSS licenses, the copyright holders are going above and beyond the monopoly granted by copyright.

All copyright owners must allow uses to access their works for three reasons:

CSS does not allow any of these lawful activities to take place.
 

OpenLaw's answer to the MPAA:

Here again, the MPAA tries to equate the use of DeCSS with burglary.    This analogy simply doesn't fit.

12.

Q:    Are there other software packages besides DeCSS available for decrypting DVD movies, and if so, is the MPAA attacking them as well?

 A:   There are no legal software packages available for decrypting DVDs.

OpenLaw's answer to the question:

Every DVD player in existence has the ability to decrypt CSS - it MUST, otherwise it would be unable to play movies.

OpenLaw's answer to the MPAA:

The MPAA would love this to be true.   Unfortunately for them, people (and companies) have the right to reverse engineer products.   Without this reverse-engineering, the free market economy could not survive.    All indications are that the CSS algorithm was legitimately reverse-engineered - a fact which makes DeCSS a perfectly legal software package.

See the section on "legality of DeCSS", below.

13.  

Q:   I hear that DVD pirates don't even need DeCSS to make illegal copies. Pirates can easily obtain hardware that can copy DVDs. So why are you taking action?

A:   The fact that there may be multiple ways to violate the law does not make DeCSS any less illegal. The MPAA attacks numerous forms of piracy in different ways worldwide. MPAA is actively pursuing enforcement actions against all illegal means to copy and distribute DVDs.



OpenLaw's answer to the question:

The MPAA would like to continue to use the "CSS" encryption standard to give them greater control over copyrighted materials via technology than was ever possible through the legal system.

OpenLaw's answer to the MPAA:

Stating that DeCSS is illegal is wishful thinking on the part of the MPAA, and depends largely on the outcome of the court case.
 

Q:  If I can make an audiocassette copy of a CD, or a VHS copy of a television broadcast, why shouldn't I be able to make a copy of a DVD that I own?

A:  Copyright law and the U.S. Supreme Court's 1984 "Betamax" decision provide for "fair use" of copyrighted material.  For example, scholars and critics can quote lines from a book in a review without fear of incurring copyright liability. Or, a soap opera fan can tape an over the air TV show during the day to watch later that night - under the Betamax decision, an unscrambled broadcast can be copied for this type of "time shift" personal use.

BUT "fair use" is not an open-ended concept. It does not justify any action an individual may take with a copyrighted work, whether they have purchased the copy or not. It is a right to use what is available, not a right of access to works for fair use purposes. For example, the law has always recognized that a show sent by scrambled pay-per-view signal may not be viewed or copied through the use of an unauthorized, illegal descrambler. The owner of the signal has - and has always had -- a legal right to scramble the signal to prevent unauthorized access to the signal for viewing or to make copies of the show.

Most importantly, this concept of fair use does not override specific statutory enactment such as the DMCA, which are intended by Congress to give clear protection to the rights of the creative community to use technological means to protect its product. It is this protection which has enabled the motion picture industry to launch new products in digital format, such as DVDs.


OpenLaw's answer to the question:

The owner of a copy of a copyrighted work does have the fair use rights of time-shifting and media-shifting.   Thus, it is perfectly legal to record a DVD onto a VHS tape - even though the DVD player's output of Macrovision signals would technically prevent this lawful activity.

OpenLaw's answer to the MPAA:

The MPAA's reading of fair use is simply false, and once again their analogy is inaccurate.

15.

Q:   It costs twice as much to make an illegal copy of a DVD as it does to buy a legal one, so why is the MPAA worried about DVD piracy, when it's not financially viable?

No one knows how long the costs of copying a DVD onto another disk will remain expensive, or whether disks would even be the most likely pathways for digital piracy. Current high costs associated with copying DVDs are likely to drop dramatically at some point in the near future.

However, questions like this miss the point. Under the law, a copyright owner has the right to control access to and use of its creative products. It does not matter if it costs $1.00, $5.00 or $500.00 to steal or misuse a work.  Regardless of cost, it is still wrong, and it is still illegal.



OpenLaw's answer to the question:

Despite the fact that DVD piracy is infeasable now, it may well be feasible in the future.

However, the threat of piracy is no excuse for dismissing the legal concepts of "Fair Use", "First Sale", and "Copyright Expiration".

OpenLaw's answer to the MPAA:
 

Copyright owners' rights ARE limited by the fair-use doctrine.    The MPAA would like you to believe that they can legally control every aspect of every use of every product that they create from its creation, to its destruction.  This is simply false.

The right of the public to "Fair Use"of copyrighted works is supported by years of copyright history.

The MPAA, in creating the DMCA, is attempting to build a wall around public access.  This is like surrounding a public library with a fence, then making it illegal to cross the fence.   True, the library still exists; however, there is no legal way to get to it.   So the net effect of the DMCA is to destroy fair use doctrine completely.

The complete destruction of "fair use" rights for any digital media is not an interpretation of the DMCA that is likely to be upheld by the courts as being constitutional.

Even public domain works - which are by definition owned by the public -  can be locked behind this barrier - affording no means of accessing content.
 

16.

Q:  Some computer users say they only want to use DeCSS to view their DVDs on computers that use the Linux operating system. Windows- and Macintosh-based computers can play DVDs, so is it fair to deprive the Linux community?

A: The Linux argument is a false issue. It has always been in the interest of the Motion Picture industry that there be as many legitimately licensed DVD players as possible, including those using non-Windows operating systems. However the argument that DeCSS was written for Linux players is simply false. The De-CSS utility was written for Windows-based software, not Linux.

Also, the development of two, separate, licensed DVD players for Linux systems - which use the CSS system - were recently announced. Sigma Designs (www.sigmadesigns.com) and InterVideo Inc. (www.intervideo.com) both announced the roll-out of LICENSED, LEGAL Linux-based DVD players.



OpenLaw's answer to the question:

This question is essentially irrelevant.   Tying the sale of DVD media with the sale of DVD players is likely to be considered illegal under the Sherman antitrust act.   By trying to limit DVD players to only those "licensed" by the MPAA or its affiliates, the MPAA is treading on shaky grounds, legally.

OpenLaw's answer to the MPAA:

The fact that several companies have announced MPAA-licensed DVD players for Linux is completely irrelevant.   First of all, no player for Linux has yet been released. .

Even if Linux DVD players were currently available, the issue at hand here is the RIGHT to create your own software.   The restrictions required by an official DVD license are offensive to many Linux users.   Specifically - the DVD licensee's are prevented from ever releasing the source code for any part of the CSS encryption algorithm.  This prevents the development of applications via the sharing of source code - a process which is very common in the Linux community.

If some Linux users want to be bound by the terms imposed upon them by the MPAA by using one of these licensed browsers - good for them.

The rest of us will continue to exercise our right to create something else on our own, rather than bowing to the MPAA's restrictions.

17.

Q: Don't consumers have the right to view their DVDs on the operating system of their choice?

A:  Consumers looking for the DVD experience have many options from which to choose. A wide array of DVD players has been licensed for the consumer market. Companies ranging from Sony to Toshiba, Panasonic to Creative Labs, make DVD players that plug into television sets, work on PC or Macintosh platforms, or fit into palmtop devices. These manufacturers all have one thing in common: They applied for and secured a license from DVD-CCA to use the CSS technology.

Buying a DVD does not grant the purchaser the right to violate copyright protections enjoyed by the creators of that work, nor to use software that circumvents copy protection.



OpenLaw's answer to the question:

Generally, product owners have the right to use their products in any way they see fit.

OpenLaw's answer to the MPAA:

Buying a DVD does grant the purchaser the right for "Home Viewing Only".   Since decrypting CSS is required in order to view a DVD in your home - this right is implicitly granted whether the MPAA likes it or not.

18.

Q: Do the MPAA lawsuits against those who are distributing DeCSS violate the First Amendment? Doesn't the right to free speech include the right to distribute computer code?

A: The First Amendment protects free expression. The motion picture industry has always been zealous in its determination to protect free expression and has always fought hard to ensure that our creative artists have the freedom to create their own vision for a film, unfettered.

However, not every word and not every form of computer code is protected by the concept of free expression embodied in the First Amendment. The law has long recognized that words can be criminal acts and that such "expressions" are not entitled to First Amendment protection. No one could deny, for example, that the words "give me all your money" are a form of expression, but when spoken to a bank teller while holding a weapon, they are simply the ultimate step in the act of robbery.

DeCSS does not convey information, ideas, opinions, or any expression at all. While it uses computer code, its sole function is to circumvent copyright protection and gain unauthorized access to the creative works of others. DeCSS is simply the "lock pick" in the high tech crime of breaking into another person's digital property. The First Amendment provides no protection for such conduct.



OpenLaw's answer to the question:

The MPAA is not only trying to suppress the DeCSS utility - it is also trying to suppress anyone who LINKS to the DeCSS utility.  This is clearly a violation of the First Amendment.

OpenLaw's answer to the MPAA:

Here we go again - attempting to portray DeCSS users as criminals with another horribly inaccurate analogy.

DeCSS does, in fact, convey information (on how CSS is constructed and how it works), ideas (on how decryption of CSS could be made more efficient), opinions (on the right of users to create their own solution instead of submitting to an oppressive corporate entity), and expression.     These are all examples of protected speech under the First Amendment.

The DeCSS source code does not advocate crime in any way.

Despite the fact that DeCSS COULD be used for the crime of Copyright Infringement - its primary intended purpose was to demonstrate how to decrypt CSS-encoded DVDs to view lawfully acquired DVD movies.

Just because a hammer "could" be used to kill someone does not mean all hammers should be banned.

Again - the MPAA would like you to ignore the fact that you are trying to play a lawfully purchased a DVD movie - and are authorized to view it by your purchase.

19.

  Q: Does this "hack" affect consumers in any way?

A: Absolutely. Copy protection encourages people to continue to strive to make new and better creative products.   Consumer choice determines which creative products succeed and which fail. However, if the industry cannot protect its copyrighted material, the creative community will have less incentive to produce and distribute more motion pictures and television shows. As a graphic example of the impact of the DeCSS hack, the rollout of DVD audio - which was to have relied on the CSS system -- was indefinitely postponed because of the proliferation of DeCSS, depriving consumers of the choice of this new higher quality audio format.



OpenLaw's answer to the question:

It most certainly does!   The existence of other freely available ways of decrypting CSS will allow companies to build the DVD players that customers want - not the DVD players that the MPAA wants.

Specifically, creating DVD players that are not subject to the restrictions of a CSS license would be possible.

OpenLaw's answer to the MPAA:

The presence of a freely available CSS decryption implementation will restore the public's access to "fair use" of copyrighted information.
 

20.

Q: What does the motion picture industry hope to accomplish with its lawsuits against people distributing the DeCSS software?

A: The motion picture industry believes it is essential to maintain a climate of respect for the law and for the rights of others, where legitimate businesses can compete openly and can be judged based on the quality of their products.  We hope to reinforce the long-standing principles of intellectual property rights and the importance to the creative community of such rights.



OpenLaw's answer to the question:

The MPAA would like to continue to use the "CSS" encryption standard to give them greater control over copyrighted materials via technology that was ever possible through the legal system.

OpenLaw's answer to the MPAA:

No one is disputing the right of copyright owners to protect their rights.   That is what existing copyright law is for.   CSS, however, allows media companies to impose restrictions on DVD makers and DVD users above and beyond what the court of law would allow.

All copyright owners must allow users to access their works for three reasons:

"CSS in conjunction with the (secret?) licensing terms imposed by the DVD-CCA prevent all of these lawful activities from taking place.

21.

Q: Have the defendants actually used DeCSS to make illegal copies?

A: It is irrelevant whether or not the defendants were personally engaged in making illegal copies. They are clearly "providing the keys to the castle," which is in violation of the anti-circumvention provisions of the federal copyright law.



OpenLaw's answer to the question:

No one can say for sure, however, no copyright infringement is alleged in this case, and no evidence of illegal copying has been submitted in court.

OpenLaw's answer to the MPAA:

Providing the keys to the castle of which we are the lawful owner, yes.
 

22.

    Q: Why are DVDs coded differently for different regions? Why shouldn't I be able to play a DVD that I bought in the U.S. on  a player in France?

Regional DVD coding has nothing to do with encryption. Encryption is designed to protect a DVD from being copied. Regional coding only requires that the DVD be played on a DVD player made for one of the large international regions of the world in which that consumer lives.

Regional DVD coding was devised to protect the theatrical distribution market for motion pictures in international markets.     It is simply impossible with present technologies to supply film prints of a movie to all of the theaters around the world at the same time. Motion pictures released by the major studios are generally released first in the Untied States and subsequently overseas. For this reason, motion pictures are released to theaters in countries in a "staggered" sequence. After the theatrical exhibition of a motion picture in a particular country, it is then released to the pay-per-view, video and television markets. DVDs are regionally coded to prevent them from being imported into countries where the motion picture has not yet completed its theatrical release.   Without such protections, motion picture theatrical distributors and exhibitors abroad could lose a significant portion of their audiences to advance DVD viewing. The lost theatrical revenues could result in theater closures, lost jobs, depriving consumers throughout the world from seeing motion pictures on the big screen. A similar impact has occurred in some worldwide markets where illegal imports are unchecked.



OpenLaw's answer to the question:

DVD region coding is there to protect the motion picture industry's revenue stream.  One would think, if the transmission of "perfect digital copies over the Internet" were as possible as the MPAA claims, that they could show all movies worldwide at the same time by distributing the movie to theaters via DVD!

Region coding has been found to be illegal in several countries.

OpenLaw's answer to the MPAA:

There is no legal basis for controlling the DVD market in this way.     In fact, several countries have made region coding illegal.
Under the strictest sense of the law,  the purchase of a DVD gives you the right for "Home Viewing"  - no geographical limitations are present in the law.    Thus, you have the right to view any DVD you purchase.

If customers choose to view movies in their home rather than viewing them on the "big screen", then that is what consumers want!

MPAA, welcome to capitalism.

Reference:
 


MPAA Analogies


Regarding the MPAA "lock pick analogy":

First of all, intellectual property law is very different than regular property law - so the analogy used by the MPAA is not really applicable.   Even if the legal differences between intellectual property and real property were ignored, the analogy used by the MPAA is completely inaccurate, and could be considered to be deliberately misleading.

The following story better illustrates how this analogy would be, if it were accurate (again, ignoring the difference between real property and intellectual property).

THE LOCK

You have purchased a new house.  At the closing, you are presented with your house keys, and you drive to your new home.
All is well, until you try and move in.  Then you discover that sometimes the door lock opens, and sometimes it doesn't.

You visit the contractor to inquire about the apparently defective door lock.  The conversation goes like this:

You:  I'm having trouble with the door lock.  Sometimes it doesn't open.

Him:  Oh, you must be trying to bring a camera or writing materials into the house.  That isn't allowed.

You:  What?  Please explain!

Him:  Gladly!   You see, my job is to build houses. I hire architects to build the houses.  They are artists, and the floor plans and architectural features in your house are copyrighted works.  Your house has a special lock on it that detects if you are trying to bring a camera or writing materials into your house and keeps the door from opening if you do.

You:  Why?

Him:  Because if you were allowed to bring a camera or pencil and paper into your house, you could take pictures of the copyrighted architecture, or make blueprint drawings of the house structure, then turn around and give those to another contractor, who could build houses from those plans.  If everyone did that, architects would make no money, and no one would want to be an architect.  We can't have that, can we?

You:  But I have no intention of doing that!  I just want to take pictures of my family, and I need writing materials and paper to write letters and pay bills!

Him:  Sorry, but I just can't take that chance.  Your pictures of your family might have the walls and staircase in the background, and those pictures would infringe on my architectural copyrights.

You:  Well, I'll just hire a locksmith to change the lock.

Him:  That would be illegal, and I'll sue you if you try!  You see, when I was designing this special lock, I figured that thieves like you would try and remove the lock, so I had a special law passed that makes it illegal to remove the lock.

You:  But I own the house!  I paid good money for it, and I resent being called a thief!

Him:  You only paid for the physical house.  I am the owner of the copyright on the design of the house.

You:  But certainly I have the right to take pictures inside my own house?

Him:  That would be "fair use", but this is different.  I installed a lock.

You:  What does that have to do with anything?

The contractor passes you a copy of the law.  You read:

A) No person shall circumvent a technological
 measure that effectively controls access to a work
 protected under this title.

Him:  The lock is a technological measure.  My law makes it illegal for you to bypass my lock.

You:  What kind of crazy, mixed up law is that?

Him:  Actually, I'm rather proud of that law.  I helped to write it, and I think it's great!

You:  Well, I don't think that you have the right to tell me what I can and can't do in my own house.

Him:  See you in court.
 

Interestingly, by the standard of the MPAA's "tool that breaks the lock on your house" metaphor, not only is a use of DeCSS not an act of theft, it can only be a completely legal act; that is because DeCSS is usable only on DVDs which you have purchased and which you therefore own.   In other words, DeCSS is more like a tool that a home owner  can use to gain access to his or her own house!
 


Regarding the burglary analogy

Webster defines burglary as follows:

burglary \Bur"gla*ry\, n.; pl. Burglaries. [Fr. Burglar; cf. LL. burglaria.] (Law) Breaking and entering the  dwelling house of another, in the nighttime, with intent to commit a felony therein, whether the felonious purpose be accomplished or not. --Wharton. Burrill.

Note: By statute law in some of the United States, burglary includes the breaking with felonious intent into a  house by day as well as by night, and into other buildings than dwelling houses. Various degrees of the crime  are established.

Cite: http://www.dictionary.com/cgi-bin/dict.pl?term=burglary

In order to commit burglary, one would have to break into someone else's property.   DeCSS, however, allows the lawful owner of a DVD movie to access the movie that he or she has purchased.

Thus, for this analogy to be correct, the house that you would be "burglarizing" would be your own.
 


Regarding the theft of satellite signal analogy

The legal difference here that the MPAA is missing is the difference between a "product" and a "service".  A satellite signal is a service provided to a user.   If a user does not pay for the service of a satellite signal, then that user is not authorized to access that signal.

With a product, however,  the owner is entitled to the lawful use of that product with or without the permission of the maker of the product.   This is what is known as "first sale" doctrine.

This case is not about theft of service - it is about a owner's use of a lawfully acquired product.    The MPAA is apparently using  this misleading argument in an attempt to make their position look better.


Regarding the "give me all your money" analogy.

The constitution protects ALL speech - even saying "Give me all your money" to a bank teller while holding a weapon.    This does NOT in any way prevent someone from being punished for any unlawful activities that result from the speech.

In instances where speech could cause unlawful activities, the courts greatly favor allowing the speech to take place and taking action after the unlawful activity, rather than preventing the free speech from taking place at all.

The First Amendment protects all speech - even speech that the MPAA would like to suppress.


Legality of DeCSS

The DMCA does outlaw devices that "circumvent" access control measures - regardless of whether copyright infringement is taking place.

The MPAA would like you to believe that "Circumvention" (as defined in the DMCA) is the same as "Using any CSS-decryption program other than the ones they sell".  The purchase of the DVD itself does grant one specific rights - usually the right for "Home Viewing Only".   Since viewing a DVD in one's home is impossible without decrypting the CSS encryption first, the right to decrypt CSS has to be passed on to the DVD owner.    Since the authority for CSS decryption is provided to you by the copyright owner "for home viewing", you are not, in fact,  circumventing access control and thus decrypting CSS is perfectly legal.

If the right to decrypt CSS is NOT automatically passed on to the DVD owner - then all DVD players (including those created by CSS licensees) are illegal by this reading of the DMCA.

In any event - the legality of DeCSS has yet to be determined by the courts, and stating that DeCSS is illegal is wishful thinking on the part of the MPAA.
 


Limitations required by a CSS license

These, and other restrictions, are terms of the CSS license that the DVD-CCA requires before they allow you to see CSS technology.   By using a freely available CSS decryption program, signing a license agreement is no longer required to build a DVD player - and manufacturers will be free to implement any features that they think consumers want.
 



Fair Use "Rights":

There are limitations to the controls that a copyright owner has with a copyrighted work.

Indeed, it is vitally important to our society that copyright owners' rights are NOT exclusive.     Copyright law allows a portion of material to be used "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research".

        Reference:
        http://www.bitlaw.com/copyright/fair_use.html

"The fair use statute: The doctrine of fair use developed over the years as courts tried to balance the rights of copyright owners with society's interest in allowing copying in  certain, limited circumstances. This doctrine has at its core a fundamental belief that not all copying should be banned,  particularly in socially important endeavors such as criticism, news reporting, teaching, and research."

There is no excuse for destroying long-standing fair use rights to copyrighted works.    The idea of "Fair Use" is vital to the free economy.   Without a concept of "Fair Use", copyright owners could suppress criticism of their views by denying the public's right to quote their works.   In short,  free speech as we know it would not be possible.

Indeed, the very right to reproduce the MPAA's Frequently Asked Questions in this web page is protected by "fair use" doctrine.

As with other copyrighted works,  the owner of a copyrighted work has the right to "Media Shifting"

For example,  if you own a copy of a DVD movie, which you would like to play in your VHS VCR in your bedroom, you are allowed to "Shift" the copyrighted item from one medium to another.     This same policy is true for other formats as well.  For example, you can make copies of copyrighted compact disks on cassette tape for playing in your car.

CSS, however, effectively blocks ALL access of a copyrighted work - including legal "fair uses" of a work.


First Sale "Rights":

The purchase of a product itself grants the owner of a product certain rights.

The owner has the right to resell the product, reverse engineer the product, or use the product as intended.

In the case of DVD medium, the purchase of a DVD grants the user the right to view the DVD in their home.


Copyright Expiration "Rights"

Copyright protection of works do not last forever.  Copyright law grants the copyright owner exclusive rights to a work, for a LIMITED TIME, after which the work becomes part of the public domain.

The DVD video format has NO mechanism to release movies to the public domain after their copyrights expire.
 


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