Copyright Office Once Again Preparing To Throw Citizens A Fair Use Bone

from the please-sir,-may-I-have-some-rights dept

A few weeks ago, I was talking with one of my friends about copyright law and just what is legal for us and consumers to do with the movies, games, music and software we own. In that conversation, the topic of copying a movie from a DVD to her computer for use on her family’s computers and tablets came up. I had the pleasure, or more accurately the displeasure, of trying to explain the nuances of copyright law and why making a copy of a DVD may not be legal. While it is generally accepted that copying a CD for home use is considered a fair use, the ability to do the same with a DVD has not been legally tested. For the most part, it remains illegal because the DMCA’s anti-circumvention clause makes bypassing DRM, whether that DRM is effective or not, illegal. With the DMCA in place, it doesn’t matter is you are copying that DVD for personal use, it is still illegal.

In response to public concerns over this portion of the DMCA, Congress added a process to the DMCA that allows citizens to petition the Copyright Office to seek an exemption. Every three years the Library of Congress and the Copyright Office team up to request, review and grant exemptions to the DMCA’s anti-circumvention clause. Every three years, the American citizens get the chance to beg the government to re-grant rights they should have if it had not been for that clause in the DMCA. Every three years the Copyright Office gets to tell American citizens just what rights they are allowed to exercise and which they can’t. We have already expressed why we think this process is completely bogus. So this year isn’t really any different. But it is important to take a look at just what exemptions are being requested this year.

One of the most active consumer groups in this process is the EFF. They have requested exemptions all but one year in the process. The year it didn’t submit a request was spent in protest over the insanity of the process. However, it has since won some important exemptions, specifically the right to jailbreak a legally purchased iPhone. This year, the EFF has decided to take it up a notch and request an exemption to jailbreak not only the iPhone, but also other smartphones, tablet computers and game consoles. It also seeks to have exemptions made for the breaking of DVD’s CSS encryption for the purpose of extracting clips to be used in non-commercial videos.

Following suit on the idea of bypassing CSS encryption, we have both Public Knowledge requesting an exemption for space shifting of DVDs for home use and the Association of Research Libraries requesting an exemption for educational use of copied DVDs. Three requests for bypassing CSS encryption. Perhaps there is something there. The ability to bypass CSS encryption and copy DVDs to computers has existed for pretty much the entire life of DVDs, yet it is still illegal to do so.

Now remember, just because these requests are being made, it does not mean we are guaranteed to get these exceptions. Companies interested in blocking these requests can still add their own submissions in response. We can certainly expect the MPAA to object to any kind of exemption for bypassing CSS encryption that doesn’t involve a video camera recording the TV. We can also expect objections from Sony and Nintendo who both hate the idea of people jailbreaking their consoles even for fair uses.

Regardless of what happens in the next few months (or two years if the last process was anything to go by), US citizens will be thrown a bone and given the semblance of fair use rights again, at least for the following three years when this whole process starts over. That is the biggest problem with this whole process. If something is worth making a temporary exemption, is it not also worth making that exemption permanent?

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Comments on “Copyright Office Once Again Preparing To Throw Citizens A Fair Use Bone”

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65 Comments
Anonymoussays:

DVD copying

I’ve taken some 1000 DVDs and ripped and encoded them so I can watch them on my iPad, iPhone, and AppleTV. It works fantastically. I will never upload them anywhere (not that anyone would want them as my encoding skills are nothing compared to what others are capable of doing), and it’s purely so I can watch stuff without having to go into the DVD closet, with the added bonus that it keeps track of what I’ve watched and haven’t watched. And yet, as Zach said, it’s probably illegal. While many of my DVDs actually don’t have CSS (ADV never bothered to put it on any of their DVDs), most of them do. But I’m doing zero harm to anyone just because I want to be able to watch my shows (and track what I’ve watched) without having to pull of the DVDs.

Anonymoussays:

Re: Re: DVD copying

You have 1000 DVDs in your possession?

I rip my DVDs for two reasons:

1) I can dump them on my NAS and stream them to media center PC in my living room and

2) I can remove all the shitty trailers, menus, ads, and FBI warnings so that when I play the movie, it just plays the movie.

I will also often burn the main movie to a 4gb DVD-R so my kids can pop it into the car DVD player without fussing with menus and such – I also don’t care if they scratch and destroy the DVD-R copy.

Finally, one more reason to make DeCSS legal is so I can finally play back DVDs on non-licensed player software for Linux, and other alternative OSes (read: not Linux) that also don’t have “officially-licensed” playback software.

That Anonymous Cowardsays:

But but but CSS is so very important and impossible for the average user to bypass!
If we allow anyone to do this to their DVD’s they will never buy the same thing 5 different ways from the corps!
How dare consumers want to deny us the right to get paid over and over and over!

I’ll just leave this right here….
http://www.cs.cmu.edu/~dst/DeCSS/Gallery/Poosheebla-dvd.html

Anonymoussays:

I suspect that they will be denied, only because the tools used for “personal backups” of CSS encoded material could be too easily used to pirate stuff as well. Yeah, yeah, I know, anyone with a brain can find them online, but they are technically illegal.

I cannot see, under the current regulatory “weather”, that this sort of thing would get approved.

Anonymoussays:

Please. Jailbreaking things like a video game system isn’t fair use. You don’t jailbreak for the fuck of it; you do it so you can pirate games and get out of paying for them. The ONLY legit use I could see is ripping a ps1 (or another system) game you already own onto a psp or other portable system. Because there’s nothing wrong with porting stuff that you already own.

A Guysays:

Re: Re:

Go google “homebrew video games”. Just because you don’t want to program a video game for your console, doesn’t mean no one does.

Also, denying an exemption will not stop pirates. It may stop users who go out of there way to know and follow the letter of the law, but that’s it. Most people don’t care about the manufacturers opinion when deciding what to do with their purchase.

Anonymoussays:

Re: Re: Re: Re:

I forgot about homebrew…but to be honest, most of the ones I played kinda sucked! You really do get what you pay (or don’t pay) for. But seriously. They would be making a mistake legally allowing people to jailbreak something like an xbox…game devs would get effed over because of all the freeloaders now able to steal their product.

E. Zachary Knightsays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

I usually don’t correct those who use “theft” or any of its variations more than once in a conversation. When I do it is at the beginning and from then on I simply use the term “copyright infringement”. It is pointless to keep correcting them unless I feel that they are completely missing my point because they are equating it with stealing.

Anonymoussays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

I’m going to have to stop committing acts of theft when I walk by houses with curtains open and TVs on then. Maybe I could equip some kind of anti-theft device to the sides of my eyes so I could only see what’s in front of me? But what if I turn and look toward the house? Better make it completely block out my vision just to be safe. That should cover visual mediums but if I want to stop stealing sounds I’ll probably need some plugs for my ears too…

If you honestly think ‘viewing content to which you are not licensed’ is a crime or even a tort then please supply a reference of one or more cases that back up the notion that one could be guilty of infringement without actually making a copy of anything.

Anonymoussays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

When you jack video from the cable company, that is the only instance I can think off right now, so why is that they need a broad law when one specifically to that industry and type of thing would have get the same results?

I guess it was because they used to do it like that and then some people complained that politicians where idiots because they couldn’t make laws that could endure the future and progress, now we are claiming them not to do broad laws because they target a lot of things and end up creating situations that nobody could have envisioned.

But most importantly we all forgot what congress is for and that is to create laws, they don’t need to make laws for the future they need to make laws for today, not tomorrow except in some rare instances, almost all those laws for tomorrow end up like crap(i.e. see copyright).

That Anonymous Cowardsays:

Re: Re:

You claim they will only use it for evil, then give an example where it is not evil. Please pick a side.

If you have children, you might understand a parent who has several hundred DVD’s of kids shows they purchased. Being able to have them setup to stream from a home server rather than letting the child be in charge of the discs would seem like a godsend. The discs can’t end up accidentally destroyed by Junior being less than careful with the discs. While the corps would enjoy you having to replace the DVDs as they get destroyed, format shifting their shows to their home server or the kids tablet etc, seems like a very valid use. But because CSS is illegal to bypass, no one should ever bypass it… and yet there are many people who do this on a regular basis.
Some are parents, or fans who aren’t going to pay a 2nd (3rd 4th)time for the same content so it plays on their iThingy and some are evil people who are just “pirating freetard bastards”. (lets ignore that those “evil” people often purchase more content then others when they find things they like.)
So punishing the paying customers is supposed to be the right thing to do?

Oh and GeoHot jailbroke his PS3 for the hell of it, to understand how it worked. He stated he would not develop any tools to let people play backups, and they still sued him. That was after they decided to take away features from something you paid a pretty penny to own.

And there is something wrong with porting stuff you “own”, because sometimes to the law its a license and sometimes its a product and that is determined by the corporation when the definition suits their needs. They have copy protection on these things, so circumventing it is in violation of the law.

Anonymoussays:

Re: Re: Re: Re:

“You claim they will only use it for evil, then give an example where it is not evil. Please pick a side.”

It’s obvious I’m on the “don’t do this shit” side. I was merely pointing out the ONE legit use I saw.

“And there is something wrong with porting stuff you “own”, because sometimes to the law its a license and sometimes its a product and that is determined by the corporation when the definition suits their needs. They have copy protection on these things, so circumventing it is in violation of the law.”

Actually, if you read the back of the game’s manual it usually states you are allowed one backup copy for personal use. Which is what I did with some PS1 games that I OWNED. Not some pirated digital copy.

The eejitsays:

Re: Re: Re: Re: Re: Re:

You’ve never heard of Xenoblade for the Wii?

Or Final Fantasy II, II or V for the NES and SNES?

Those were games that were not released on their respective consoles in the US and Europe…until the PSX came along. That’s right, Chuckles! The only legal way you couyld obtain them was by doing something that was, at the time, illegal. And yet, that was a legitimate purchase.

That Anonymous Cowardsays:

Re: Re: Re: Re: Re: Re:

“Actually, if you read the back of the game’s manual it usually states you are allowed one backup copy for personal use. Which is what I did with some PS1 games that I OWNED. Not some pirated digital copy.”

And how does that gel in the reality where it has copy protection so to make a legal backup you need to circumvent the protection to make it and then have your machine play it?

If you have to circumvent the protection your violating the DMCA and they will sue you and throw you in jail for not being a good little consumer and just buying another copy, expecting that some words on the box covers your behind.

So please explain how you can play your legally made backup without modifying the copy or the machine to accept it as being real?

Anonymoussays:

Re: Re: Re: Re: Re: Re:

Actually, if you read the back of the game’s manual it usually states you are allowed one backup copy for personal use.

It was supposed to say “you are allowed to buy one backup copy for personal use.”

You didn’t actually think they’d just let you copy their game for free, did you? You filthy freetard pirate!

Anonymoussays:

Re: Re:

Wrong!
Video Games for you are a box that plays games, for hackers is a box full of components that they can use to create a number of things, from recognition of faces, realtime tracking in 3D space and a lot of other things.

http://hackaday.com/category/gameboy-hacks/
http://hackaday.com/category/psp-hacks/
http://hackaday.com/category/wii-hacks/
http://hackaday.com/category/xbox-hacks/
http://hackaday.com/category/kinect-hacks/

PaulTsays:

Re: Re:

“You don’t jailbreak for the fuck of it; you do it so you can pirate games and get out of paying for them.”

Wilful blindness isn’t a virtue.

Of course, presumably being a closeted American with no interest in non-English language games, you maybe don’t come across any need to access PAL games or games that never have been and never will be released in the arbitrarily chosen region you happen to reside in.

For those of us who do, there’s very good reasons to jailbreak the systems we have legally purchased to play games we have legally obtained.

“Because there’s nothing wrong with porting stuff that you already own.”

Oh, so you agree with me? Alrighty then…

Anonymoussays:

Re: Re: Re: Re:

“Of course, presumably being a closeted American with no interest in non-English language games”

Lol. Don’t throw me in with some racist retards from my country. I do happen to like SOME Japanese games, I just don’t find the effort of jailbreaking a system worth it for 1 or 2 games. If YOU actually want to pay double the price of a game to import it and go through the effort to jailbreak a system, then be my guest.

PaulTsays:

Re: Re: Re: Re: Re: Re:

“Don’t throw me in with some racist retards from my country.”

Yeah sorry didn’t mean to imply anything. It’s just that this is one of the problems talking about this issue with people over there – you’re so well serviced by the legitimate market that pirates probably do represent a decent proportion of the people who want/need to jailbreak. It probably is an truly niche market there to do it for legitimate reasons. Elsewhere in the world, we’re not so lucky.

” I do happen to like SOME Japanese games, I just don’t find the effort of jailbreaking a system worth it for 1 or 2 games.”

I’ll bet you live somewhere in the region of a rabid anime/hentai/whatever fan who thinks exactly the opposite. Again, just because you don’t see the need or feel the desire to do something, that doesn’t mean it won’t be problematic for others if the law tries to prevent them from doing what they wish with their own property.

“If YOU actually want to pay double the price of a game to import it and go through the effort to jailbreak a system, then be my guest.”

If there’s literally no other way to play the games I wish to play other than do that, then yes I will thanks.

Rekrulsays:

Re: Re:

Please. Jailbreaking things like a video game system isn’t fair use. You don’t jailbreak for the fuck of it; you do it so you can pirate games and get out of paying for them. The ONLY legit use I could see is ripping a ps1 (or another system) game you already own onto a psp or other portable system.

Emulators for older systems like the Atari, Commodore 64, MAME, etc, are very popular. There are versions for practically every system under the sun, but you can’t run them on a PSP or Xbox without jailbreaking it first.

A PSP can also be made to play video files, but you have to jailbreak it for that too.

Because there’s nothing wrong with porting stuff that you already own.

Try telling that to Sony…

Anonymoussays:

Re: Re:

Oh wait! I’ve cracked games that had a stupid “Insert DVD” to play requirement. On my desk, finding that DVD/CD is damn near impossible. And hey, the cracked version works just fine without the DVD/CD.

Why do media companies love punishing the paying customer? When the crackers offer s functionally superior product?

Good thing I’m a sucker for box art…..
{Speaking of, I miss vinyl album covers but that’s another topic…}

Anonymoussays:

Re: Re:

You don’t jailbreak for the fuck of it?

Well, I do.

I happen to have 3 original XBox with modchips in them servicing the TVs in my house as media centers. The fact that I had to tear them apart and install the modchips, and then upgrade the HDs and install XBMC through various painful steps kinda made the whole thing interesting… Although I would have preferred it wasn’t so painful.

Would you have rather these old consoles ended up in a landfill after everyone upgraded to 360’s that played their same games?

E. Zachary Knightsays:

Re: Re:

Another funny thing about this whole DMCA exemption process is that those who want to “pirate games and get out of paying for them” aren’t waiting for permission from the government to do that. They have been doing it for years.

What this will allow is not only for those who want to “rip a ps1 (or another system) game you already own onto a psp or other portable system”. They also want to be able to import games from other regions, play homebrew games, use homebrew software, etc. All these legal uses would be more widely available to law abiding citizens.

To continue in the belief that making an exception for console jailbreaking will result in more piracy is a fallacy perpetuated by console manufacturers. Rather this will open up the console to more games and competition.

MrWilsonsays:

Re: Re: Corporate Entitlement

This is the irony. IP maximalists keep saying that technology doesn’t change anything, but they want it both ways – they want consumers to not use technology to gain abilities they didn’t have under analog formats yet they want to use technology to make their products more restrictive and thus theoretically more profitable.

Taping songs off the radio wasn’t an issue before CD burners came around. Suddenly I can download a near perfect version of the song or even record it off a digital stream and it’s completely different.

Meanwhile, they want me to pay for a new copy of a song for my ipod, for my smartphone, for my wife, for my home computer, etc., just because the technology allows for it.

Anonymoussays:

Re: Re: Re: Re: Corporate Entitlement

It is perfectly leagal to copy a CD for archival purposes or to rip MP3s for personal use on other devices. When you purchase a CD you are purchasing the physical disk and licensing the contents of the disk for private non-commercial use. Legal digital downloads are licenses without physical media purchase. You do not need to pay for additional licenses to port the music. But you do need to pay for a copy for your wife if she wants to port the music to her devices.

Don’t blame the media companies for taking money from people who are ignorant of their rights.

MrWilsonsays:

Re: Re: Re: Re: Re: Re: Corporate Entitlement

How either ignorant or disingenuous of you.

“It is perfectly leagal to copy a CD for archival purposes or to rip MP3s for personal use on other devices.”

I agree, but tell that to Sony’s lawyers:

“When asked by the RIAA’s lead counsel whether it was wrong for consumers to make copies of CDs they have purchased, Jennifer Pariser replied in the negative. “When an individual makes a copy of a song for himself, I suppose we can say he stole a song,” said Pariser. Making “a copy” of a song you own is just “a nice way of saying ‘steals just one copy’,” according to Pariser.”

http://arstechnica.com/tech-policy/news/2007/12/riaa-those-cd-rips-of-yours-are-still-unauthorized.ars

If legal digital downloads are only licenses, why do the terms “purchase” and “buy” come up so much? “How to browse and buy content from the iTunes Store.” I know courts have ruled this way, but it’s still bullshit. This is another scenario in which the RIAA is using technology to create artificial restrictions. They complain that just because the technology allows customers to share with each other, they shouldn’t, but then they don’t have a problem using technology to make their products more restrictive.

“Don’t blame the media companies for taking money from people who are ignorant of their rights.”

And this is what is wrong with greed-worshipping capitalism. If you think it is not unethical to knowingly take money from people who do not know what they are getting into, you need to take an ethics course.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Corporate Entitlement

I blame the law for that, media companies are greedy entities that would do everything they can to get everything they believe would benefit them even if it has no inherently value/benefit to anybody else.

I blame a system that is based on donations to rank the most valuable interests inside society on the political sphere.

But then again you can’t blame people for pirating everything under the sun and ignoring the law too, so I guess it is just fair, people try to get absurd rights and others just ignore them.

fogbugzdsays:

Will bad behavior matter?

I wonder how much industry bad behavior will matter in the decisions. There is sort of a balance implied in the DCMA. Companies and certain industries have gotten some extraordinary powers to protect themselves, but that implies that they have a responsibility not to abuse that power by harming consumers. If bad behavior matters to the LoC, here is how I predict things will shake out:

Carrier ID. This is very bad behavior by just about every carrier. Most of the instructions for removing Carrier ID (at least the ones that probably work) involve rooting your phone, and that effectively breaks any DRM installed by the carriers. If bad behavior matters, then jailbreaking mobile phones should be approved. Besides, the ruling that iPhones could be jailbroken did not cause the sky to fall as people in the industry predicted.

Sony is guilty of some bad behavior when it comes to game consoles. First they rolled back a feature that Sony itself advertised as a reason to buy PlayStations. Then there was the little matter of the consoles being essentially useless while Sony fixed their servers. What would happen if Sony had not fixed their servers? Would it be fair to just tell folks “Too bad for you. Your expensive game console is now worthless. Of course you could still use it if you broke DRM on it, but that would be illegal.” On balance Sony probably did more damage to their customers than the customers could do to Sony if DRM could be circumvented. That should count for something. Nintendo and Microsoft didn’t have these problems, but Sony’s behavior demonstrated how vulnerable consumers are to corporate bad behavior due to DRM on game consoles. The LoC would have justification for allowing breaking DRM on game consoles, but maybe they will just allow it on Sony systems.

DVD DRM has mainly damaged the industry itself, although it certainly inconveniences legal users. However, the DCMA allows companies to hurt themselves with silly DRM all they want, and it assumes that people who legally buy the product will be inconvenienced (unlike the people who get the movies illegally and get a more useful version). Still, DVD DRM hasn’t had any incidents making the news about bad behavior harming consumers. At least not yet. If the LoC uses bad behavior to justify any other DRM circumvention it would send a strong message to the MPAA companies to be very, very careful about introducing even more draconian DRM systems that might do customers actual harm.

Anonymoussays:

Re: Re:

Why? CD’s have no protection, they are too old a tech to have it and everybody can copy it without bypassing any DRM in it.

DVD’s on the other hand were designed to have a DRM it was to protect Hollywood not the labels, unless the labels can put something on the market that is adopted by everyone and has DRM, at this point they probably need to pay consumers to buy their new improved hardware because no one will buy another CD player with DRM in it and replace their entire collections that can cost tens of thousands of dollar to be restricted and not be able to back up after, that is why BluRay adoption is slow, Hollywood is scared to end up like the labels stuck with a physical format that is easy to hack and not being able to change it in the future.

Short version: DMCA didn’t apply to CD’s, allowing it to copy was just a formality.

PaulTsays:

Re: Re: Re: Re:

“Why? CD’s have no protection, they are too old a tech to have it and everybody can copy it without bypassing any DRM in it.”

Not strictly true. They certainly attempted to include some, but they either backfired due to customer backlash (the Sony rootkit debacle) or via standards enforcement (they violated the Red Book standard and so couldn’t be legally sold as CDs, IIRC).

“DVD’s on the other hand were designed to have a DRM it was to protect Hollywood”

That also backfired and has led to numerous unintended consequences.

jupiterkansassays:

It doesn’t matter if it’s going to be used for infringement. You buy a machine, you bring it into your home, you can do what you want with it. Having a law saying it’s illegal to alter physical hardware is against human nature – which is to futz with and tinker with things to see what they can do. That’s where new ideas and inventions come from, and that’s exactly what people are going to do – law be damned. Yeah, some people are going to do illegal things with it, and some people are going to burn their house down. That doesn’t mean they have no right of ownership.

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