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Jewish World Review Oct. 16, 2008 / 17 Tishrei 5769 Copying DVDs: RIP OR RIPOFF? By Rabbi Dr. Asher Meir
With music CDs, copying is already an established practice. Music consumers are used to immediately transferring music CDs to other devices such as computers and MP3s. They can do this using a wide variety of "ripping" programs which copy the music files and often recode them, for example as MP3 files which compress the more expansive files found on CDs with some loss of fidelity. Once you buy a song, you have the technical ability to copy it to any number of devices.
Is ripping legal? The legal question involves us in a thicket of legal and contractual obligations. Does the ripping consumer violate the law (copyright) or a contract (the license agreement)? What about the ripping software? It may violate digital rights management laws, such as the US Digital Millenium Copyright Act which makes it a crime to produce or disseminate technology meant to circumvent copy protection. If the software manufacturer actually has a contract with the copyright holder, who decides to make copying available under controlled circumstances, it could violate the contract as well.
The music industry is uneasy about music ripping software, mostly because this makes it so easy to transfer songs to someone else who didn't pay for the CD. But evidently the industry is reconciled to the situation. It does add significant value for the legitimate consumer, as listening to music on digital players has far outstripped listening to them on the original CDs. Industry representatives have conceded that making copies for personal use on a second device is legitimate. In the case of music CDs, their strategy is to pursue end users who copied music they didn't purchase, or those who made copies available to others in this way - not the distributors of ripping software.
However, when it comes to ripping movie DVDs the entertainment industry has come out swinging. The first prominent lawsuit was against Kaleidescape, a company that makes a high-end product to allow people to archive their DVDs on a dedicated device. The DVD Copyright Control Association (CCA), which licenses devices to play DVD's, sued the company, claming that this violated the license Kaleidescape obtained to produce a DVD device. Last year Kaleidescape won the case, but the judgment had little to do with intellectual property rights, turning rather on a narrow interpretation of the specific wording of the license.
RealNetworks, like Kaleidescape, makes a dual claim: On the copyright front, they claim that the archiving itself is "fair use" (this was the conclusion of a court in the landmark Sony Betamax case from 1984 which permitted time-shifting as fair use). On the license front, they claim that since the archived copy is encrypted in the same way as the original, the license is not violated.
The Motion Picture Association of America promptly went to court seeking a restraining order against RealNetworks on the grounds that RealDVD enables and encourages consumers to circumvent copy protection, in particular by renting movies and keeping copies on their hard drives, a practice they call "rent, rip and return". Note that this suit alleges illegal conduct, and not just breach of contract.
It is noteworthy that DVD CCA has never sued the distributors of the various unlicensed and free programs that rip DVDs, or companies that do the archiving themselves; they have reserved their wrath for the licensed companies. Their strategy at this stage seems to be to reinforce the impression that ripping is illegal, rather than actually preventing illegal ripping.
I cannot blame the MPAA for bringing this suit, but I think that it is fruitless and superfluous.
Why hopeless? As Sony learned to its dismay in the Betamax case, you have to pick your battles carefully or you will get a precedent that works against you. The court here is likely to say the same thing it said over twenty years ago: If you have the right to view something, then fair use gives you the right to view it a little later too. So making a copy of a DVD you own will be considered fair use. Once this is granted, then a device designed to make such a copy will be considered to have a substantially legitimate use; it is not designed to aid piracy. MPAA are in criminal, not civil, court and they will have to prove their case beyond a reasonable doubt.
Why superfluous? The supposed "threat" of people copying rented videos just does not strike me as being very threatening. The presumed loss to studios is renting instead of buying, or renting once instead of renting twice. But DVD movies are in any case only released for rental after purchases have peaked (they are also released for sale only after the movie flags at the box office), so the competition to purchases from rentals is just not that great. And how often have you rented the same film twice anyway? Maybe this would even boost rentals, as people would rent a whole bunch of movies to archive, perhaps some that they end up never seeing.
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JWR contributor Rabbi Dr. Asher Meir, formerly of the Council of Economic Advisers in the Reagan administration, is Research Director of the Business Ethics Center of Jerusalem, Jerusalem College of Technology. To comment or pose a question, please click here.
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