Copywrong

We've been down this road before; I expect the ultimate result will be the same, but it does show how corporations learn lessons for each new battle.

Los Angeles (Reuters, February 20) - A federal court has ruled that privately held 321 Studios must stop making software that allows users to copy DVDs, handing Hollywood's major movie studios a victory in their ongoing battle against copyright piracy. ...

The case had tested the limits of 1998's Digital Millennium Copyright Act, which protects copyright holders from illegal copying of movies, music, books and TV shows, among other creative content.

321 Studios had argued its software protected DVD owners because it gave them the ability to make copies in case their original DVDs were destroyed and the company claimed the DMCA allowed the copying DVDs if copies were designed for the sole use of the owners.

The studios had countered that 321's software circumvented special software encryption codes that protected the DVDs from being copied and therefore violated the DMCA.

This same fight has occurred on various fronts over the last years, most notably in the cases of computer software and videotapes. In each case, the producers' argument has been the same: pirated copies cost them money. In each case, the figures offered - $3 billion a year in the case of videotapes - have been grossly inflated because they assume that every pirated copy is a lost sale. That is, if there are, let's say, 10,000 pirated copies of Raiders of the Lost Ark floating around out there they're assuming that every one of those 10,000 people would have purchased a copy at full retail price if the pirated copy hadn't been available - which is absurd on its face.

Nonetheless, such piracy did undoubtedly cost them bucks. So they tried various routes and ruses to prevent people from making copies - and just as repeatedly failed. Particularly in the case of software, they were frustrated by the fact that people had the legal right to make backup copies - so if means to defeat copy protection were found, the companies had little basis to object because it only allowed people to do what they had a right to do.

Ultimately, the companies pretty much gave up and instead did what some pirates themselves said they had to do to undermine piracy: lowered their prices or, in some cases, kept them the same over time, in effect lowering them in comparison to the price of other items. (Which they certainly could afford to do: When CDs were first coming onto the market, a lot of people complained that they usually cost as much as twice what a cassette or a record - a what? - of the same music did, even though the production costs were actually lower.)

In the case of the DMCA, however, if I understand it correctly - and I'm sure someone here will correct me if I'm wrong - it has become illegal to evade a copy-protection scheme, overriding any remaining rights you have to make backups for your own protection. It was that provision the 321 Studios ran afoul of.

There is a bit of slimy legal trickery going on here, which many people don't know about. You can find it buried in the small print of some of the contracts you supposedly agree to by using software and sometimes find it in fine print on DVD cover sheets. Under this view of law, when you buy that software or that DVD you don't actually own it. That physical disc you hold in your hands isn't yours. It still belongs to the producing company. What you have purchased is the right to use that software or right to view that DVD and the item itself is merely the means by which the production company enables you to do that. So you have no right to make any copy of it - because it's not yours in the first place.

That was the lesson learned between the software battles and now. The issue, now as then, frankly is more than money: To something like the entertainment industry, the actual amounts lost to piracy are little more than chump change. The bigger issue is control. That's what terrified them about bootleg software, about Napster, about overriding DVD protections: losing control. Control means power and power means money - yes, it does come back to money - but power also means power. I believe the notion of having and using power for its own sake is an aspect of corporate behavior which we who resist it have failed to consider adequately.

Ultimately, however, I think the studios will fail here as they have failed before. Someone will post code to override DVD copy protections (in fact, I bet someone already has). It will spread sub rosa with the studios constantly playing catch-up, suing or threatening to sue providers and trying to track down individuals as they did with file-sharing. By such means they can limit bootlegging, but they won't stop it. In fact, they'll likely have less success here than with file-sharing because there they could attack the continuing transmission of a large number of files whereas here they'll be trying to chase down one. (Because of their sheer size, the internet distribution of full-length DVDs simply does not for at least the near future rise to the level of probability - or, for that matter, possibility - that distribution of individual songs does, so the concern is over the distribution of physical as opposed to digital copies. Once you have the protection-busting software, you no longer need a web connection to burn copies.)

Obviously, I've addressed here only one part of the issues raised by the DMCA and that in a rather jumbled way. I want to make clear that I'm not indifferent to the problems facing the creators of works who have seen their work ripped off for the use of others. I have been in that position both as a writer and a photographer (although I admit that in neither case was I financially injured, just pissed off). I do support copyright laws. But the fact is that movie studios, frankly, do not actually create movies; writers, actors, technicians, f/x people, directors, and all the rest do. Studios are the ones that bring them together to accomplish that end, but the corporation is not the creative force. In cases like the one brought against 321 Studios, it's not the artistic creator who's being harmed by bootlegging, it's the corporation distributing that work.

So let's be honest about who's actually being protected here.

Update February 24: "In fact, I bet someone already has." Yup. 321 Studios has announced that it will market a revamped version of its product without the protection-busting features, noting as it did that such software was already widely available on the internet, often for free.

Ironically for the industry, removing the copy-busting also removed a feature that labeled a copy of a DVD made with the product as a copy and prevented more than one copy from being made.