[Ecommerce] FYI Techdaily story on May 2 hearing on DMCA exemptions (backup of DVDs etc)

[Manon Anne Ress]

Techdaily
Foes Debate Whether Backup DVDs Constitute 'Fair Use'
by Drew Clark

A software company that permits consumers to make backup copies of 
movies on digital videodisc (DVD) on Friday squared off against movie 
industry representatives about whether their software is legal and the 
proper subject of an exemption from digital copyright law.

"We are fighting for our principles and our business life," said Robert 
Moore, CEO of 321Studios.com, which is in litigation with the Motion 
Picture Association of America (MPAA) about whether its backup software 
violates the 1998 Digital Millennium Copyright Act (DMCA).

Speaking before a panel of five Copyright Office officials, he said the 
librarian of Congress, to which the Copyright Office reports, should 
grant a DMCA exemption for individuals who lawfully acquire DVDs and 
then "repair or make backup copies for their own personal use."

Moore's proposal is one of a series ofS more than 50 being considered as 
part of a triennial review of the DMCA. The law permits the office to 
grant exceptions if it believes that lawful public access to works that 
do not violate copyrights has been blocked.

In October 2000, the librarian granted only two limited exemptions and 
cited a lack of specificity among those making requests. This year, 
however, DMCA critics have tried to hone their firepower on an array of 
specific harms -- such as the backup copy request -- and questions posed 
by office attorneys demonstrate that many of the exemptions are being 
seriously considered.

"Consumers spend millions of dollars on DVDs," Moore said in his 
presentation. "They should be allowed to protect their investment 
without resorting to demands to repurchase a DVD that later goes bad." 
He said hundreds of families have problems with the durability of their 
DVDs.

Asked by Steve Tepp, a policy planning adviser in the Copyright Office, 
whether "fair use" of copyright material permits individuals to make 
backup copies, MPAA Executive Vice President Fritz Attaway said: "No, it 
is not a fair use to create a backup of the DVD."

He said copyright law countenances fair uses for commentary, news 
reporting, teaching or research. "It does not mention backup copies, and 
no court has ever said so," Attaway said. If Congress believes 
otherwise, he said, why would it have added to copyright law language 
that "specifically allows backup copies of computer programs under 
certain circumstances"?

SNIP

In her earlier opening remarks, Perlmutter said consumers often 
incorrectly assume that any of their personal uses are fair.

"Our concern is that while many of the [exemption] requests are cast 
with greater specificity [than in 2000], when you look at what they ask, 
they are far-reaching indeed and challenge the DMCA and copyright law," 
Perlmutter said, noting that in particular, requests to circumvent the 
region-coding systems of DVDs would limit the exclusive right of 
copyright holders to determine the sale and distribution of their works.
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-- 
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176