From: mike 


http://www.economist.com/daily/columns/techview/displaystory.cfm?story_id=90964
21&fsrc=nwl

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IS IT legal to make a copy of that DVD you’ve just bought so the family can
watch it around the home or in the car? In one of the most watched
copyright cases in recent years, a judge in northern California ruled last
month that copying DVDs for personal use was legal, given the terms of the
industry’s licence and the way the copies were made.


The wider implication of the ruling remains clouded—not least because the
DVD Copy Control Association, the loser in the case, has 60 days to appeal.
But whatever the video industry may like to think, the writing is on the
wall for copy protection.

Copyright is a tricky thing. It protects only the way that an author,
designer, photographer, film-maker or composer has expressed himself. It
does not cover the ideas or the factual information conveyed in the work.

What constitutes fair use or an infringement is trickier still. Much
depends on the purpose and character of the borrowed material’s use.
Limited reproduction for the purpose of criticism, comment, news reporting,
teaching, scholarship and research is considered fair game. But the
wholesale repackaging of the content for commercial use is a flagrant
infringement.

In America, the Audio Home Recording Act of 1992 made it legal for people
to record copyrighted radio broadcasts for personal use. But while the act
said nothing about making digital recordings, ripping copyrighted music
tracks off CDs and storing them on an iPod has become an everyday
occurrence. Despite the number of iTunes downloaded for a fee, Apple would
be in trouble if people were prevented from transferring legitimately owned
CDs to their iPods. The software Apple gives away to iPod customers is
designed to let them do just that.

Most people think it ludicrous that they can’t do the same with the DVDs
they own. Now it seems, despite squeals from the movie industry, the law is
finally moving in the video fan’s favour.

The issue in the recent case was whether Kaleidescape, a maker of digital
“jukeboxes” that store a person’s video and music collections and
distribute the entertainment around the home, had breached the terms of the
DVD Content Control Association’s CSS (content scrambling system) licence.

A Kaleidescape server stores digital content ripped from CDs and DVDs on
its hard drive. The content is then encrypted and fed to various screens
and speakers around the home by a secure cable. Kaleidescape claimed that
content distributed this way was even safer than it was on the original
polycarbonate disks. The judge not only agreed, but couldn’t find any
breach of the copy-protection licence either.

If the case ends there, to all intents and purposes the notion of fair use
would appear to apply to DVDs as well as CDs. The movie industry, which
nowadays depends as much on DVD sales as on box-office receipts, still
seems to think that making life difficult for its customers is a recipe for
success.

After likewise shooting itself in the foot for ages, the record industry is
now falling over itself to abandon DRM (digital rights management) on CDs.
A number of online music stores such as eMusic, Audio Lunchbox and
Anthology have given up using DRM altogether. In a recent survey by Jupiter
Research, two out of three music industry executives in Europe reckoned
that dropping DRM would improve sales.

The latest music publisher to do so is EMI, which announced in January that
it had stopped producing CDs with DRM protection. “The costs of DRM,” it
declared, “do not measure up to the results.”

In an open letter entitled “Thoughts on Music”, even Steve Jobs, Apple’s
charismatic boss and chief evangelist, recently called for the elimination
of DRM. From this month, Apple’s iTunes will sell EMI’s highest quality
recordings (those with sampling rates of 256 kilobits per second) without
DRM for a small premium.

Belatedly, music executives have come to realise that DRM simply doesn’t
work. It is supposed to stop unauthorised copying, but no copy-protection
system has yet been devised that cannot be easily defeated. All it does is
make life difficult for paying customers, while having little or no effect
on clandestine copying plants that churn out pirate copies.

Now the copy protection on DVDs is proving just as easy to bypass. The
biggest flop has been the CSS technology featured in the recent
Kaleidescape case. It was first cracked back in 1999 by a Norwegian
programmer called Jon Lech Johansen, who showed, in a few short lines of
elegant code called DeCSS, just how trivial such lauded protection systems
really were. Since then, even the DRM used to protect the new
high-definition video disks (the Blu-ray format from the Sony camp and its
HD-DVD rival from the Toshiba alliance) have been cracked wide open.

While most of today’s DRM schemes that come embedded on CDs and DVDs are
likely to disappear over the next year or two, the need to protect
copyrighted music and video will remain. Fortunately, there are better ways
of doing this than treating customers as if they were criminals.

One of the most promising is Audible Magic’s content protection technology.
Google is currently testing this to find the “fingerprints” of miscreants
who have posted unauthorised television or movie clips on YouTube.

The beauty of such schemes is that they don’t actually prevent anyone from
making copies of original content. Their purpose is simply to collect
royalties when a breach of copyright has occurred. By being reactive rather
than pre-emptive, normal law-abiding consumers are then left in peace to
enjoy their music and video collections in any way they choose. Why
couldn’t we have thought of that in the beginning?
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 /m

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