The position of the studios -- MGM Studios, TriStar Pictures, Columbia Pictures Industry, Time Warner Entertainment, Disney Enterprises, Universal City Studios and Saul Zaentz Company -- is that cracking DVD copy protections is illegal in nearly every case, no matter what a person intends to do with the copies. "Any copies that are made by a user are infringing and not permitted whether they are making back-up copies or extra copies," said Russell Frackman, a partner with Los Angeles-based Mitchell Silberberg & Knupp, who is representing the studios. He added, however, that the position could change if better antipiracy technology were created in the future. "We have a product out there that's being used to infringe our clients' copyrights," he said. But 321, in arguing that its products are legal, is also arguing that the DMCA must be reined in. "The court is going to have to come up with a new, nuanced interpretation of the statute," said 321 attorney Daralyn Durie, a partner at San Francisco-based Keker and Van Nest. "What's at stake is the ability to engage in fair use in a digital environment." Durie said that as more films move to distribution in digital format exclusively, the studios' efforts to control what people can and cannot do with a DVD becomes more important. "The studios would love a regime where a movie reviewer would have to get permission before viewing a clip, because that could influence the content of the review," she said. The case between 321 and the studios started more than a year ago, when the software developer took the unusual pre-emptive step of asking a court to declare DVD Copy Plus legal. Company executives decided to file the brief last April after reading newspaper reports in which studio representatives said they planned to sue DVD-copying software makers and in which 321 was mentioned. The studios didn't follow through on the promise to sue until December, a few weeks after 321 released DVD X Copy. The program makes perfect copies of a DVD, including the extra features, whereas DVD Copy Plus had made inferior versions of a movie. Battle lines
The case has attracted the attention of several parties, including the federal government, which has stepped in on the side of movie studios to defend the constitutionality of the DMCA. The Electronic Frontier Foundation (EFF) has weighed in on the other side, arguing that the courts should protect technologies that enable copying that's traditionally been legal -- such as when people make back-up copies, when videographers duplicate their work or when teachers excerpt films for educational use. "The public should benefit from new media technologies, not find its rights further restricted when new formats are used," EFF staff attorney Wendy Seltzer said in a statement. The digital-copyright roadkill has piled up in recent years as companies in the film, record and publishing industries have stepped up their legal battles against consumer electronics and software developers. Because the Internet makes it so easy to copy and distribute works in unprecedented numbers, intellectual property owners fear they will lose millions of dollars from piracy, or unauthorised copying. Napster, Aimster and Scour are among file-swapping services that have all failed amid charges that their services violate copyright law in some way. But 321 is hoping its case will be helped by a recent ruling that file-swapping companies Grokster and Streamcast Networks, which distributes Morpheus, weren't liable for copyright infringement that took place on their networks. Although that decision didn't deal directly with the DMCA, Durie said the cases are related. "It shows courts are actually willing to look at new technology on a case-by-case basis and not assume that because a technology can be misused, (it) means that it should be banned altogether," Durie said. Meanwhile, studio attorney Frackman said the studios will continue to pursue cases against technology they view as illegal. "Hopefully, you send a message with 321, but some people won't get that message."
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