The Two Best Books About the DMCA

The blogosphere is doing a great job examining the legacy of the Digital Millennium Copyright Act (DMCA), which was enacted into law ten years ago this week. But people frequently ask me where they can turn for a more in-depth analysis of the DMCA, DRM, and their impact on digital culture. For them, there are two books I recommend first and foremost.

First, there is Jessica Litman's Digital Copyright, which does a masterful job explaining how the DMCA (and much of the rest of our copyright law) came to be. Tracing the law from its beginnings in the internal bureaucracy of the Clinton administration in 1992, over to the international treaty realm of the World Intellectual Property Organization (WIPO), and back to Congress, her account lays bare the political realities that produced a law that put corporate interests before the public interest.

Second, there is Tarleton Gillespie's Wired Shut, which picks up where Digital Copyright leaves off, tracing how the DMCA has been used as part of a larger effort to use technology and law to "weld the hood shut" on new digital devices. Tarleton's book is a bit more academic in tone than Jessica's, but at the heart of it are three fantastic chapters than provide a full historical accounting of the controversies surrounding (1) SDMI (chapter 5); (2) the development of CSS, used to encrypt DVDs (chapter 6); and (3) the broadcast flag for digital broadcast television (chapter 7). For those who want to get right to the action, I recommend starting at Chapter 5. EFF was deeply involved in all three of these watershed digital controversies, so to some degree these chapters are also a history of our digital copyright efforts.

If you want to understand what the DMCA does, and how we ended up with it as the law of the land, these two books are where to start.

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DMCA: Ten Years of Unintended Consequences

Today is the tenth anniversary of the Digital Millennium Copyright Act (DMCA), signed into law by President Bill Clinton on October 28, 1998. EFF is marking the occasion with the release of a 19-page report that focuses on the most notorious part of the law: the ban on "circumventing" digital rights management (DRM) and other "technological protection measures." The report, entitled Unintended Consequences: Ten Years Under the DMCA, collects reported cases where the DMCA was used not against copyright infringers, but instead against consumers, scientists and legitimate competitors.

The collected stories are like a trip down memory lane for those who have followed digital freedom issues over the past decade. Here are a few examples of DMCA abuse in the report that you might remember:

• In 1999, Sony sues Connectix over the Virtual Game Station, which let you play your legit Playstation games on your Macintosh.
• In 2001, the Secure Digital Music Initiative (SDMI) threatens Princeton Professor Ed Felten's research team over disclosure of vulnerabilities in audio watermarking technology.
• In 2001, Russian programmer Dmitry Sklyarov is arrested after speaking at Defcon, accused of building software for his employer, ElcomSoft, that converted Adobe e-books to PDF.
• In 2002, Blizzard sues a group of hobbyist open source developers over bnetd, server software that allows people to play Blizzard games against each other over the Internet.
• In 2003, Lexmark uses the DMCA to block distribution of chips that allow refilling of laser toner cartridges.
• In 2004, Hollywood succeeds in shutting down 321 Studios' DVD X Copy software, which allowed people to make backup copies of their own DVDs.
• In 2006, computer security researchers at Princeton delay disclosure of the Sony-BMG "rootkit" based on fears of DMCA liability.
• In 2008, Hollywood targets Real Networks over RealDVD, software that allows you to copy DVDs to a hard drive for later viewing.

The collection of stories makes vividly clear what EFF has been saying for the past ten years: the DMCA has harmed fair use, free speech, scientific research, and legitimate competition.

That's all the more galling because the law has failed in its stated goal of preventing digital piracy, instead being used to prop up weak DRM schemes whose only purpose is to hinder competition, innovation, and interoperability. That explains why the music industry has largely abandoned DRM, while the Hollywood studios cling to it more fervently than ever.

Not everything in the DMCA is bad. While the anti-circumvention provisions have proven to be a dangerous failure, the so-called "safe harbor" provisions for online service providers have succeeded in creating enough legal certainty to launch companies like Yahoo, Google, eBay, YouTube, and MySpace. Of course, copyright owners have been working hard in cases like Viacom v. YouTube and Io v. Veoh to erode these safe harbors. And, while the safe harbors have protected intermediaries like Google, they have not adequately protected the free speech interests of internet users, as the McCain-Palin campaign recently learned.

There have been recent rumors that the new Congress might reopen the DMCA, creating an opportunity for reform. Unfortunately, that may also create an opportunity for MPAA and RIAA mischief. For now, here's hoping that the DRM continues its slow death and the anti-circumvention provisions become less relevant to real businesses, while the courts continue to interpret the safe harbors to leave a door open to the Internet's disruptive innovators.

P.S. For more perspectives on the DMCA's origins and legacy during this 10 year anniversary week, see Freedom to Tinker and the Public Knowledge blog all this week.

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Do You Need An Exemption from the DMCA?

Every three years, the U.S. Copyright Office undertakes a rule-making to consider whether the DMCA's ban on circumventing technological protection measures (e.g., DRM and other "access control" restrictions) is interfering with noninfringing uses of copyrighted materials. The Copyright Office has announced that those interested in requesting a DMCA exemption for the period 2009-2012 must submit their proposals to the Copyright Office by December 2, 2008 (there will be an opportunity in February to support or oppose the proposals, but the proposals have to be made in December).

Do you think you might need a DMCA exemption? Before you answer, you should read the Copyright Office's final report in the 2006 rule-making carefully. As we pointed out in 2005, the Copyright Office has repeatedly dismissed any consumer-oriented fair uses, such as making backup copies of DVDs or video games, as well as requests for exemptions to enable copying DVDs to laptops and portable devices. The Copyright Office also rejected EFF's efforts to secure exemptions in 2003 to allow circumvention of DVD region coding by legitimate DVD owners, to skip "unskippable" DVD advertisements, and to access public domain materials on DVDs. All in all, we stand by our 2005 assessment that the DMCA rulemaking process is hopelessly broken when it comes to addressing noninfringing digital consumer fair uses.

However, the 2006 rule-making showed that other kinds of exemptions may be granted, where circumvention is necessary for noninfringing activities like classroom teaching (e.g., film professors using DVD clips), computer security research (e.g., regarding copy-protected CDs), archiving and preservation (e.g., preserving video games and multimedia software), maintaining obsolete systems (e.g., malfunctioning or obsolete "dongles" for software), and promoting interoperability (e.g., cell phone unlocking).

If you are engaged in noninfringing activities that have been tripped up by the DMCA's anti-circumvention provisions, and would be interested in a DMCA exemption for 2009-2012, let us know by October 31. We've got some ideas of our own (including renewing the cell phone unlocking exemption for you iPhone unlockers!), but we're eager to hear from other user communities that may have been overlooked.

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YouTube Responds to McCain Campaign's Letter

Yesterday, we wrote about the McCain-Palin campaign's letter to YouTube, highlighting how DMCA takedown notices can make online speech disappear from the Internet, even when the claims of infringement plainly lack any merit.

Today, we bring you YouTube's response. YouTube's response points out, much like we did yesterday, that the McCain-Palin campaign's proposed solution (human review of DMCA takedown notices targeting videos posted by political candidates and campaigns) favors speech from one particular class of users. YouTube says that it "tri[es] to be careful not to favor one category of content on [its] site over others, and to treat all of [its] users fairly, regardless of whether they are an individual, a large corporation, or a candidate for public office."

At the end of the day, we agree with YouTube that "[t]he real problem here is individuals and entities that abuse the DMCA takedown process." And we commend YouTube for taking action in some cases where it has identified false takedown notices.

Nonetheless, although YouTube may not be the source of the problem, that doesn't mean it can't do more to be part of the solution. YouTube notes that it can't always be certain whether a video qualifies as fair use, and that it can't know whether the poster has a license to the content. That's all true.

But just because YouTube can't always identify sham takedown notices doesn't mean it can't sometimes know the answer. Using a short excerpt from a news broadcast and commenting on it in a political commercial is clearly fair use. And there are many other examples of clear fair uses, as well.

We'd love to see YouTube take further action, so that takedown notices directed at clearly non-infringing videos can't be used to silence speech. As we said yesterday, stay tuned for more on this topic from us soon.

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McCain Campaign Feels DMCA Sting

Yesterday, the McCain-Palin campaign sent a letter to YouTube describing the troubles it has been having with bogus DMCA takedowns targeting its videos:

[O]verreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech. Numerous times during the course of the campaign, our advertisements or web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine. The uses at issue have been the inclusion of fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports, or on the reports themselves. These are paradigmatic examples of fair use...

It's heartening to see a presidential campaign recognize the importance of fair use and "remix culture" (the Obama-Biden campaign has also been the victim of frivolous takedowns from big media companies, so this is a bipartisan problem). EFF, the ACLU, Harvard's Citizen's Media Law Project, and Stanford's Fair Use Project have been making the same point for several years now. EFF has also been providing direct legal assistance to victims of DMCA abuse.

Unfortunately, the solution proposed by the McCain campaign addresses only the tip of the iceberg:

[W]e believe that it would consume few resources--and provide enormous benefit--for YouTube to commit to a full legal review of all takedown notices on videos posted from accounts controlled by (at least) political candidates and campaigns.

The obvious problem with this solution? It assumes that YouTube should prioritize the campaigns' fair use rights, rather than those of the rest of us. That seems precisely backwards, since the most exciting new possibilities on YouTube are for amateur political expression by the voters themselves. After all, the campaigns have no trouble getting the same ads out on television and radio, options not available to most YouTubers.

Let's start by identifying the real villains here: the major news media outlets. They are the ones censoring these political ads, based on the use of a few seconds of their footage. The networks need to back off and give fair use a wide berth. So let's start by shaming the bad guys here. In addition, lawsuits might help. Under the DMCA, both the campaigns themselves and YouTube have standing to sue those who send clearly bogus takedown notices. (EFF has represented video creators in a number of these cases, including against Viacom.)

There are other possible solutions, as well. Stay tuned for our specific ideas on what YouTube can do to protect fair use while staying within the bounds of its DMCA safe harbor protection (hint: as the McCain-Palin letter points out, you don't need a safe harbor if the video isn't infringing, something that human review by YouTube should be able to determine).

UPDATE: The McCain-Palin campaign has identified the news outlets behind the YouTube removals: CBS, Fox News, and the Christian Broadcasting Network. We noted above that NBC has targeted an Obama-Biden video for removal. That's four news entities that should know better.

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Why Hollywood Hates RealDVD

Why does Hollywood hate RealDVD so much? Here's a hint: it has nothing to do with piracy and everything to do with controlling innovation.

Earlier this week, a district court in San Francisco extended the temporary restraining order (TRO) blocking RealNetworks' distribution of its RealDVD software, at least until a full-dress preliminary injunction hearing can be held sometime in late November. Although reporters have done a good job reporting on the hearing, they have not answered a more basic question: why does Hollywood care so much about RealDVD in the first place?

It's not about piracy. After all, those who want to copy DVDs have plenty of free, widely available, easy-to-use software to choose from (e.g., Handbrake, DVD Shrink, Mac The Ripper). And those who want to skip the tedium of DVD ripping altogether can easily download movies from unauthorized sources like The Pirate Bay. In short, Hollywood can't possibly believe that the $30, DRM-hobbled RealDVD software represents a piracy threat in an environment rife with easier options.

So why unleash all the expensive lawyers to kill RealDVD? Answer: to send a message about what happens to those who innovate without permission in a post-DMCA world.

As we've said for years, DRM systems like the Content Scramble System (CSS) used on DVDs are not principally about preventing piracy. Rather, DRM is the legal "hook" that forces technology companies to enter into license agreements before they build products that can play movies (Hollywood lawyers candidly admit this "hook IP" strategy). Those license agreements, in turn, define what the devices can and can't do, thereby protecting Hollywood business models from disruptive innovation.

This arrangement reverses the previous innovation status quo. Where non-DRM'd content (e.g., books, broadcast TV, the CD) is concerned, innovators do not have to ask permission before building new products that can copy and play copyrighted works (e.g., the photocopier, the VCR, the iPod). But where DRM'd content like DVDs are concerned, Hollywood intended the DMCA's anti-circumvention provisions to slam the door on that kind of disruptive innovation. After the DMCA, technology vendors would have to ask permission, sign licenses, and make concessions, if they were going to build things to play DRM'd Hollywood movies.

So it's not that Hollywood implacably hates personal use format-shifting and space-shifting -- rather, Hollywood wants to make sure those new features happen on Hollywood's terms ("pay us again"), on Hollywood's timetable ("later"), and only after valuable concessions have been wrung from technology companies ("watermark detection, compliance & robustness requirements, down-rezzing").

That's why RealDVD is such a threat. By reading the existing CSS license carefully, Real (and Kaleidescape before it) found a way to create a new product category without first getting permission from (and paying obeisance to) the Hollywood studios. Real's defection represents a threat to several schemes that Hollywood has been working on for throttling DVD innovation over the next several years. For example:

• Managed Copy: Hollywood has been negotiating for years with technology companies over "Managed Copy," a mechanism that will allow limited copying of DVD and Bluray discs onto PCs and portable devices. "Managed Copy" has been promised for years, yet has not materialized, thanks to power struggles inside the organizations that run the relevant DRM licenses (DVD-CCA for DVDs, AACS-LA for Bluray). In the course of these negotiations, Hollywood has managed to wrest several important concessions from technology vendors (including requiring that computers do watermark detection to spot pirated copies when reading data from Bluray discs, and imposing DRM on resulting copies). If those technology companies can build things like RealDVD and Kaleidescape under the terms of the existing contract, then the prospect of more negotiations and concessions for Managed Copy suddenly seems much less appealing.
• Digital Copy: Hollywood has begun selling DVDs that come with a second disc that permits the making of a copy on a PC. The catch? You have to pay extra for the right to make this personal use copy -- in other words, Hollywood is stealing your fair use rights and selling them back to you piecemeal.
• Internet Download Services: you already bought it on DVD, but now Hollywood wants you to buy it a second time from iTunes, Amazon, or MovieLink if you want to watch the same movie on a PC or iPod.

So that's the real story here. It's not about piracy. It's about Real defecting from the DRM licensing cartel, building what consumers want now instead of negotiating endlessly for a spot in Hollywood's next Five Year Plan for the DVD format.

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Why MPAA Should Lose Against RealDVD

Earlier this week, the motion picture industry sued RealNetworks over its RealDVD software. The MPAA companies also asked for an immediate temporary restraining order (TRO) to block Real from distributing the product, which allows consumers to copy their DVDs onto their personal computers for later playback.

There are many obvious reasons why this is a short-sighted and futile gesture by the studios (as Jon Healey of the L.A. Times points out), but let's focus just on the fatal flaws in their legal theory. (We've posted the key legal documents, including TRO briefs, for those who want to read them and form their own opinions.)

In order to obtain a TRO or preliminary injunction, the studios have to demonstrate both (1) a likelihood of prevailing on the merits of the case and (2) irreparable harm if they don't get an immediate order blocking distribution of RealDVD. They fail on both counts.

Irreparable Harm ... Not

Let's take "irreparable harm" first. The studios claim that if consumers get the power to copy DVDs (gasp!), it will be a catastrophe for Hollywood's DVD, VOD, and digital download businesses. I'm not sure what alternate version of reality the MPAA is living in, but consumers have been able to copy DVDs for a long time, thanks to free, widely available DVD rippers like Handbrake, DVD Shrink, and MacTheRipper. And, as we pointed out back in 2006 in a filing with the Copyright Office, this isn't a fringe activity only for hacker super-users. DVD rippers are in wide circulation and have been routinely reviewed in the mainstream press (like the Fort Worth Star-Telegram, PC World and MacWorld, not to mention Lifehacker). In fact, most of us were wondering how RealDVD was going to compete with Handbrake, particularly since RealDVD costs more ($30 v. free) and does less (Windows only v. multi-platform, DRM restrictions v. no restrictions).

So if DVD copiers are already in the hands of millions of consumers, how does the introduction of RealDVD threaten "irreparable harm" to Hollywood? Answer: it doesn't.

Hollywood also argues that "Real's (false) prophesies of legality have the likely potential of altering consumer attitudes towards DVD-copying and, accordingly, consumer behavior." That's absurd. If the distribution of RealDVD does not threaten irreparable harm (because it's just one more DVD ripper), then Real's public statements about their legal position (all protected by the First Amendment) certainly can't tip the balance. After all, the MPAA's litigation, legislation, and public education efforts have already reached far more consumers than Real could ever hope to. Plus, there are those FBI warnings in every DVD, as the studios tout in the first line of their TRO brief: "Anyone who has ever watched a popular movie on a DVD knows from the opening frames that copying the content of the DVD is strictly prohibited."

[Aside for law nerds: The studios also make a half-hearted claim that they are entitled to a presumption of irreparable harm because that's the norm in intellectual property cases. That argument died two years ago, with the Supreme Court's 2006 ruling in eBay v. MercExchange rejecting those "presumptions." In fact, these same movie studios lost this same argument in front of the district court judge in MGM v. Grokster last year. See 518 F.Supp.2d 1197, 1212-14 (C.D. Cal. 2007).]

DMCA Violation ... Not

Nor are the studios likely to prevail on the merits of their DMCA claim. According to the studios, RealDVD "circumvents" the CSS encryption system that protects DVDs. The problem with that argument is that Real has a license from DVD-CCA to decrypt DVD movies, and the DVD-CCA v. Kaleidescape case tells us that the license does not prohibit making bit-for-bit digital copies of DVDs, so long as you keep them secure and play them in a software player that complies with the license requirements. This brings us to the heart of the studio's argument:

Although Real has authorization under the CSS license to use the decryption keys and licensed technology to play content on DVDs, Real does not have authority to use that technology to make a permanent, playable copy of DVD content. By using authorized technology for an unauthorized purpose, Real "avoid[s]," "bypass[es]" and "impair[s]" those very measures. In short, RealDVD circumvents CSS's access- and copy-control protections.

The trouble with this line of argument is that two courts have ruled that "using authorized technology for an unauthorized purpose" does not violate the DMCA. According to those courts, if someone gives you a password, and then you use it in an unauthorized way, there's no DMCA "circumvention." Here, the "password" would be the CSS keys to decrypt DVDs, which Real received as a DVD-CCA licensee. So using those keys for an "unauthorized purpose" is no DMCA violation. And, since the studios are seeking their TRO based solely on the DMCA, that should be the end of that.

[Aside for copyright nerds: if you believe the MPAA that the DVD-CCA license does not authorize "copying," but only "playback" of DVDs, then what about all the temporary RAM copies that are made by all licensed DVD players? The MPAA just got done arguing strenuously in the Cablevision case that all those RAM copies count as copies, no matter how short-lived. Have they changed their minds and embraced the Second Circuit's contrary ruling?]

The court should deny the TRO (and any subsequent preliminary injunction). Let the MPAA try to prove its case in court. In the meantime, let Real distribute RealDVD into the crowded market of PC-based DVD rippers and hard-drive based DVD jukeboxes. After all, Handbrake is more likely to kill off RealDVD than Hollywood is.

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Court Protects Privacy of Satellite Receiver Owners

Last month, EFF filed an amicus brief in Echostar v. Freetech, where Echostar sought the identities of every consumer who purchased a Freetech "CoolSat" free-to-air (FTA) satellite receiver during the past five years. EFF argued that this demand, issued in discovery in a lawsuit between Echostar and Freetech, represented an unwarranted intrusion into the privacy of individual consumers. Today, the court agreed, issuing an order blocking Echostar's subpoenas.

The ruling potentially sets an important precedent, as it represents the first time a federal court has explicitly rejected a third-party subpoena on the basis of the privacy interests of nonparty consumers.

Echostar is the company behind the DISH satellite TV service. Freetech makes receivers for unencrypted, free-to-air satellite transmissions (there are many free, unencrypted satellite channels). In December 2007, Echostar sued Freetech, alleging that the Freetech CoolSat receiver was specifically designed for after-market modification to enable unauthorized reception of DISH programming. According to Echostar, Freetech "sold thousands of these FTA Receivers to consumer pirates for the sole purpose of circumventing [Echostar]'s Security System."

In the course of discovery, Echostar sent subpoenas to the distributors of CoolSat receivers, demanding that they hand over their customer lists, including the name, address, email address, and purchase details for every person to have purchased a CoolSat receiver over the past 5 years.

As EFF explained in its amicus brief, these subpoenas represent a serious intrusion into the privacy of legitimate purchasers of these FTA receivers. Not only would it be an intrusion to be contacted by Echostar about a device you purchased months or years ago, but other satellite TV companies have used customer lists to launch mass litigation campaigns against consumers. After DirecTV obtained similar customer lists in litigation in 2001, it sent more than 170,000 letters to individuals demanding "settlements" of $3,500.

In refusing to allow Echostar to obtain the CoolSat customer lists, the court specifically weighed Echostar's need for the information against the privacy interests of the customers whose information would be disclosed. The court expressed concern that "both those who purchase the FTA receivers for proper and improper purposes will be swept up in the process." The court went on to conclude that "the requests for customer lists, therefore, could lead to the perceived harassment of legitimate users and a concomitant chilling effect on the purchase and lawful use of Freetech's FTA receivers."

Kudos to the court for keeping the privacy interests of nonparties in mind as commercial litigants dispatch third-party subpoenas that would otherwise carelessly intrude into the lives of individual consumers.

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YouTube Anti-Scientology Takedowns: Good News, Bad News

Now that the dust has settled on the anti-Scientology video takedown controversy, it's time to take stock. For those of you who missed this one: on September 4th and 5th, hundreds and possibly thousands of videos critical of the Church of Scientology were taken down as a result of DMCA notices reportedly sent by by American Rights Counsel, Dr. Oliver Schaper, the Schaper Company, Media House Enterprises, and ContentFactory America. It rapidly became clear that these entities did not hold the copyrights to the materials they claimed to be infringed, including footage from a Clearwater City Commission meeting and a man-on-the-street interview. In addition, many of these videos were obvious fair uses, such as independent news reports.

Here’s the good news: YouTube quickly realized something was fishy, and began investigating. Within days, YouTube suspended the accounts that had sent out the allegedly fraudulent DMCA takedown notices, reinstated the accounts that had been suspended for multiple allegations of copyright infringement, and put most of the videos back up on YouTube, all without waiting to receive DMCA counter-notices from YouTube users who had had their videos taken down.

Well done, YouTube. The company identified a problem and worked to resolve it and protect users, rather than waiting passively for the takedown targets to send counter-notices. As we noted last month, online service providers play a crucial role in preserving and promoting online political speech, and YouTube seems to have taken that role seriously here.

Now, the bad news: if YouTube had not been proactive in dealing with what appeared to be fraud, the Anti-Scientology videos might still be down today. Very few YouTube users filed DMCA counter-notices in response to the takedowns, apparently out of concern for their privacy. The DMCA-compliant counter-notices must normally include the full name, address, and telephone number of the alleged copyright infringer. YouTube passes this information along to the party making the copyright infringement claim. Scientology critics, reportedly concerned about Scientology’s alleged Fair Game policy, were reluctant to surrender their anonymity.

And here's more bad news: not only would takedown targets have to give up their own private information to get their videos restored, they had no guarantee that they would in turn be given the names and addresses of the people who sent the DMCA notices. The DMCA does not require Online Service Providers, such as YouTube, to pass on the identifying information in the DMCA takedown notice to the alleged infringer. Without that legal requirement, YouTube, as well as other OSPs, are reluctant to reveal this information for fear of violating the sender's privacy. That lack of quid pro quo is not just unfair, it makes it very difficult for takedown targets to determine whether the notices are from legitimate owners, and to pursue legal action when notices are sent improperly.

But now back to the good news: YouTube and other OSPs can take steps to remedy this imbalance. They should require individuals who send takedown notices to agree, in advance, to disclosure of their identifying information. If circumstances caution against disclosure (e.g., if the takedown target has been harassing or stalking the copyright holder in some way), copyright holders can use an agent to send the takedown, giving the alleged infringer a point of contact while protecting the individual's personal privacy. Whether the DMCA is being used as a tool of censorship or to press a legitimate copyright claim, transparency and openness is critical, and the copyright holder should have the courage to stand up and be counted.

We understand YouTube is aware of the problem and is considering ways to correct it. We hope that happens soon, before the next wave of abusive takedowns hits.

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The Latest on DVD Copying

Real Networks has received quite a bit of attention thanks to the launch of its Real DVD software, designed to allow people to copy their DVDs to their hard drives for later playback. (Why is that a big deal? Because Hollywood DVDs are encrypted with CSS, and if you decrypt them without permission, the motion picture industry's lawyers may come a-callin'.)

Today there are two approaches for those who want to make and distribute DVD copying tools. First, you can just build a DVD decryptor, the U.S. court cases that have held that the distribution of those products violates the DMCA notwithstanding. Despite those legal precedents, there is no shortage of free, easy-to-use tools that take this approach, including Handbrake (Win/Mac/Lin), DVD Shrink (Win), or MacTheRipper (Mac). (The motion picture studios argue that anyone who uses these tools violates the DMCA, as well.)

The other approach is the one pioneered by Kaleidescape: sign licenses with the DVD-CCA (the cartel that controls the CSS encryption technology), build a licensed player, make bit-for-bit copies of encrypted files from DVD (aka "DVD archiving" as opposed to "DVD ripping"), and play back those files in the licensed player. DVD-CCA subsequently sued Kaleidescape claiming that the license requires that the original DVD be physically present in the device upon playback, but Kaleidescape prevailed. The case is currently on appeal (DVD-CCA filed its opening brief in December 2007).

Real has chosen to follow in Kaleidescape's footsteps. Apparently, it is not alone -- CEPro has an informative article summarizing all the DVD media server solutions for the home theater market that were announced at the recent CEDIA conference. Looks like Hollywood's iron-fisted grip of DVDs is slipping a little every day.

UPDATE: CEPro has followed up with an article that gathers all the FAQ answers offered by makers of DVD copying/server solutions (Kaleidescape, Real, Escient, ReQuest, Xperinet, Axonix, Fuze Media) to the question "how is this legal?"

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