Update (Sept. 27): I rewrote the final paragraph of this essay in order to make my position on DVD ripping more clear. I also added a new link under Further Reading.

Digital media and the DMCA

As many readers of this page probably know, I'm the author of a free (GPL) video-editing tool called Avisynth. Although many people now use Avisynth for a variety of different purposes, I originally wrote it for myself: I want to make a Web page with reviews of some lesser-known classic movies, together with short excerpts in MPEG-1 format, with the hope of increasing knowledge of the movies and perhaps even generating some new interest in them. I couldn't find any existing video-editing tool which had all the features I wanted, and so I ended up writing my own.

A few of the movies I want to excerpt are now available on DVD, and so it was natural to give Avisynth the ability to read DVD. As such I wrote "VOBVideoSource," "VOBAudioSource," and "VOBSubpictureOverlay" filters for Avisynth which allow the VOB files on DVDs to be read in much the same way as AVI files. With DVD's higher-quality signal I'm able to produce MPEG clips which are much better looking than clips made from VHS, while at the same time being smaller in file size (which is naturally an important consideration for me).

One important difference between my VOB reading code and similar software that's already available is that my code pre-scans the VOB files to generate an index, and as a result it supports fast frame-accurate access to any point in the video stream. Tools without this ability are really only suitable for encoding an entire movie from beginning to end; they can't be used for excerpting except with extreme difficulty. There are existing MPEG-1 editors which pre-scan the file (such as VirtualDub), and there are a few MPEG-2 editors which do it as well, but as far as I know there is no current tool which does this and also supports DVD. Releasing my "VOB source" code could make the excerpting of DVD-encoded movies practical for the first time.

However, at present I could easily be sued, and possibly even be thrown in jail, for releasing my code. With this page I hope to inform as many people as possible about what is going on now with digital media rights, and what (besides my software) is at stake.

What's going on?

I refer you to the DVD FAQ, section [4.8]: "What is DeCSS?"

The FAQ is not updated very frequently. For more recent news, visit Openlaw: Open DVD.

You can find another (and better) "facetious look at the broad issue" in the Aug. 24, 2000 strip of Tom the Dancing Bug.

Don't the movie studios have every right to control the copying of their works?

In point of fact, no. Unlike basic rights such as free speech, copyright is considered (in legal theory and practice) as a limited grant from the government that can be rescinded at any time.

It's worth remembering that in a democracy, the government's only function -- and its sole duty -- is to act in the best interest of the people at large. The government should never give power to a small number of people (like an individual or a corporation) at the expense of others unless there is a compelling social interest in doing so. This doesn't mean that copyright should be abolished, but it does mean that arguments about copyright should always proceed from the perspective of social benefit.

The U.S. Constitution has the following (and nothing further) to say about copyright:

The Congress shall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries[.] (Article I, section 8; capitalization modernized)

This states in no uncertain terms that the grant of copyright is optional, and that its purpose is to benefit society (by promoting "the progress of science and useful arts") and not to benefit the copyright holder.

Legal precedent also consistently supports this view. For example, the U.S. Supreme Court opined as follows in Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984):

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.

The Supreme Court has expressed similar views in many other rulings throughout the years.

Thomas Jefferson was very concerned with the dangers of government-granted monopolies like copyright, and he felt that an explicit limit on the duration of such monopolies should be included in the Bill of Rights.

Is it really such a big deal if people can't digitally transcode DVD? They can always connect a DVD set-top player to a video digitizer, or just record to a VCR.

No, they can't, because the analog output from DVD players includes a Macrovision® copy protection signal. VCRs can't record video which contains the Macrovision signal, and video digitizers refuse to digitize the video if it's present. Macrovision is a registered trademark of Macrovision Corporation.

What about FireWire? It doesn't have any copy protection.

There are no DVD players with FireWire outputs, for precisely this reason.

Please understand that the MPAA intends to block every means of duplicating any portion of a movie on DVD. It is not just targeting the particular method of direct digital transcoding.

You may wonder how the MPAA can prevent the manufacture of DVD players with FireWire. Obviously in a free market there should be players with FireWire support, since this would be useful to a great many people. The reason such players don't exist is that the DVD Copy Control Association (which is closely affiliated with the MPAA) does not allow manufacturers to use CSS unless they sign an agreement which stipulates, among other things, that their consumer equipment won't output descrambled data except in a "protected manner." Since a player without CSS would be unable to play most DVDs, the manufacturers have no choice but to follow whatever restrictions the Copy Control Association places on them. This is very similar to what Microsoft used to do to computer manufacturers with its Windows licenses.

Interestingly enough, there is no charge to license CSS. You just have to sign the license agreement. It has been argued -- persuasively, I think -- that the primary purpose of CSS is not to control copying at all, but to control the manufacture of DVD equipment.

But there are methods of circumventing these copy protection schemes, right?

Yes, but those methods are now illegal.

In 1998, in response to lobbying by the movie and recording industries, Congress passed the Digital Millennium Copyright Act, which states in section 1201, subsection (a), paragraph (2) that

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title [that is, a copyrighted work];

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

Section 1201, subsection (a), paragraph (3) clarifies some terms:

(3) As used in this subsection-

(A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

(B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

What's most remarkable about these prohibitions is that they make no mention of the legality or illegality of the underlying copying. They do not simply prohibit the manufacture, etc. of devices whose primary purpose is to violate copyright. A technology, etc. might have a primary purpose which is entirely legal, and yet still be prohibited. Despite the "primary purpose" smokescreen, paragraph (2) appears actually to prohibit a wide class of devices that merely have the potential to facilitate copyright infringement -- not just those that are designed or produced to do so. There has never been a prohibition like this in the history of copyright law.

There is a lot of legal controversy over the exact meaning of "the authority of the copyright owner," and it is possible that the DMCA might be partially de-fanged by a court ruling stating that the legal purchase or rental of a DVD confers that authority. There's no compelling reason to believe that that will happen, though.

The DMCA also includes a paragraph (1201(k)(1)) which requires all VCRs sold from now on to be incapable of recording video signals which use the Macrovision copy protection system (which, by the way, is patented and licensed exclusively by Macrovision Corporation).

Won't the copyright owners grant permission for most reasonable uses anyway?

Some will, some won't. The point is that they should not have that power. Copyright is a government-granted monopoly and should not be absolute.

What about piracy?

There are two kinds of piracy: large-scale organized piracy and small-time piracy.

The large-scale pirates have their own DVD manufacturing facilities. They can simply make a bit-for-bit copy of an existing DVD. Any DVD player will happily descramble and play the copy for the same reason that it will descramble and play the original. Protection methods like CSS do not prevent or even discourage this kind of piracy.

Small-time pirates will not be able to do this, even with consumer DVD-ROM recorders (because these recorders will be specifically designed to prevent it). DeCSS does make copying much easier for these people. However, piracy is already illegal, and those engaged in it are unlikely to care that DeCSS adds one more illegal step to the process. DeCSS can be outlawed, but it cannot be erased from existence. Many DVD ripping sites already provide illegal copies of commercial programs (such as software DVD players) mixed indiscriminately with legal free software. DeCSS is one of the programs they offer, and it's very hard to believe that they will care whether it falls into the "legal" or the "illegal" category.

My conclusion, then, is that outlawing the use of DeCSS will do next to nothing to reduce the piracy of DVDs.

What about fair use?

Fair use and related activities are a very different story. The transcoding of movies from DVD for purposes falling under fair use is inherently legal. As such, if a single necessary part of that process (namely, a device designed to circumvent a copy-protection measure) is ruled illegal, the entire process becomes illegal and the fair use right is effectively nullified. As I said before, the goal of the MPAA is to insert at least one copy-protection measure in every method of duplicating a portion of a DVD. If they succeed in this and the DMCA is upheld, fair use rights will no longer apply to DVD. And what the courts decide now for DVD will unquestionably be extended to all future digital media.

How concerned about this should I be?

One of the present DMCA test cases will probably end up in the U.S. Supreme Court. I think it's likely that the Court will strike down the relevant provisions of the DMCA as unconstitutional. However, it is not a foregone conclusion.

Earlier I quoted from the Court's majority opinion in Sony Corp. of Am. v. Universal City Studios, Inc. (1984). In that suit (originally filed in 1976) Universal City Studios claimed that Sony Corporation, the creator of one of the earliest consumer VCRs, was guilty of "contributory copyright infringement." In other words, the claim was that by selling its VCRs, Sony was contributing to the recording of copyrighted broadcast TV, which was an infringement of copyright. The district court initially ruled for Sony, but the appellate court reversed the verdict. The Supreme Court finally resolved the case in Sony's favor.

Believe it or not, this landmark decision was made on a vote of 5-4. Had this vote gone the other way, VCR makers would have had to pay enormous damages to Hollywood, and the market for consumer videocassette recorders almost certainly would have died in its adolescence. The recording of television programs for later viewing would be illegal -- if you could even find a VCR to do it with. I hope that frightens you, because it does me.

Hollywood studios also fought video rental stores in the courts. Two centuries earlier, book publishers fought lending libraries in much the same way.

There's a sad irony to these cases. Irony, because the perceived threat that these companies fought always turned out instead to be a great boon to those same companies' sales. Sad, because these lawsuits sometimes succeed. Have you noticed that there are no neighborhood software rental stores or CD rental stores? That's because the SPA and the RIAA happened to win those particular cases.

I think that one of the most serious problems with our democracy is that people tend to think it doesn't matter much what laws get passed or what politicians get elected.

It does matter. The reason you don't notice is that you only get to live one of the alternatives.

If the book publishing companies had managed to stop lending libraries a couple of centuries ago, public libraries probably would not exist today. Try to imagine a world without public libraries. Living in such a world, the idea that a public library might exist probably wouldn't occur to you. If it did, you'd probably dismiss it as economically infeasible. If anyone tried to start a public library system, book publishers would protest (and, for that matter, actually believe) that the libraries would remove their incentive to publish by destroying their revenue stream. It seems plausible enough, in the absence of evidence to the contrary.

Growing up without public libraries, you wouldn't feel impoverished. But the social poverty and ignorance would be none the less real.

This is not just a fantasy. We aren't going to lose libraries for paper books, but we could easily lose them for electronic books. DVD, as the first in a new wave of digital formats, is the bellwether. If the right of Hollywood studios to prevent fair use of DVDs is upheld, it will be applied to electronic books as well. If that happens it's very likely that publishers will start releasing many books in electronic form only, precisely because they can control their readers that way. In fact, this is already happening.

This is not a question of authors versus consumers, but of people versus corporations. Ultimately, the works people create belong to the people. That's not some radical revisionist philosophy -- it's the foundation of our copyright law.

What can I do about this that won't require too much of my time?

You can help to inform the public of these issues, either by writing or talking about them to people, or by linking (or otherwise referring) to a page like this one which does so. Linking is particularly easy -- spend five minutes creating a page of links for your web site.

You can write to your representatives in the state and/or federal legislatures.

You can donate to the Electronic Frontier Foundation, a non-profit organization which is similar to the ACLU, but specializes in digital rights. The EFF is funding the defense of the current DMCA test cases.

If you are one of the DVD rippers, please think long and hard about what you are doing. I know that civil disobedience can be a powerful tool for change. But civil disobedience is not about breaking the law. It is about standing up for what you believe is right, even at the risk of fine or imprisonment. If you are trading Divx files furtively, under a pseudonym, that is not civil disobedience -- it is only crime. And it is a crime that is resulting in more damage to our freedoms than you may realize. Ask yourself if you truly believe that what you are doing -- not DVD ripping in general, but what you are doing -- is right. If you don't believe that, then please, for all of our sakes, don't do it.

Further reading (links)

Copyright notice

The contents of this page are Copyright 2000 Ben Rudiak-Gould. You may reproduce this work, in whole or in part, in any medium, provided that the reproduction includes this notice (or words to the same effect) and this canonical source URL: http://www.math.berkeley.edu/benrg/copyright-dmca.html.

Note that under the "fair use" provisions of international copyright law, you may reproduce a short excerpt from this work without consideration of the distribution terms above. In addition, you may freely use all of the factual information included in this page (as opposed to its presentation), per Feist Publications, Inc. v. Rural Tel. Serv. Co. (1991). (I advise you to find independent verification of the facts, though.)

Ben Rudiak-Gould