Judge Bans Copying Software for DVDs

A federal judge has banned a popular line of computer programs used to copy DVD movies, ruling that they violated a controversial 1998 law against tools that pick the electronic locks on copyrighted works.

At the request of the major Hollywood studios, U.S. District Judge Susan Illston on Thursday ordered 321 Studios of St. Charles, Mo., to stop manufacturing or distributing products that circumvent the anti-piracy protections on DVDs.

The ban is scheduled to take effect late next week, but 321 President Robert H. Moore said the company hoped to continue selling its products pending an appeal.

“I really believe in the end this is a decision for the Supreme Court or Congress,” Moore said.

The case was closely watched by entertainment and software companies, many of which increasingly depend on electronic locks to protect the goods they deliver on disc and online.

321 Studios has sold about 1 million copies in the U.S. of its DVD-copying programs, which retail for $50 to $120, Moore said. Although 321 promotes the programs as a way for people to make backup copies of the movies they own, they also can be used to make pirate copies of movies rented from a video store or borrowed from a library.

“The whole copyright industry has a stake in this,” said attorney Evan R. Cox, a copyright law expert at Covington & Burling in San Francisco. He added that “the only way the judge could have found for 321 was to throw out” critical portions of the 1998 Digital Millennium Copyright Act.

The Hollywood studios argued that 321’s products were illegal under the 1998 act because they circumvented the encryption on DVD movies. In particular, the software defeats the Contents Scramble System, or CSS, that the major studios use to deter DVD copying.

Attorneys for 321 and three technology advocacy groups contended that the software was legal because people who buy DVDs have a right to make backup copies. During arguments last year in San Francisco, the company’s lawyers urged Illston to find that the law encroached on 321’s free-speech rights and its customers’ ability to make fair use of copyrighted movies.

Relying heavily on two earlier cases involving the Digital Millennium Copyright Act, Illston declared that the CSS-circumventing feature in many of 321’s products was illegal and that the law did not unduly burden the company or its customers.

The judge sidestepped the question of whether people have a right to make backup copies of movies.

Cindy Cohn of the Electronic Frontier Foundation, a technology and civil liberties advocacy group that backed 321, said Congress did not intend to roll back consumers’ rights to make copies when it passed the 1998 law.

“As the copyright holders get new technologies and produce things in new formats, consumers’ fair-use rights should not be left behind,” Cohn said. “Effectively, what the court has said is, consumers have less rights in technologically protected media than they had in other media. And now I think the question is properly put to Congress, ‘Is that what you meant to do?’ ”

Jack Valenti, chief executive of the Motion Picture Assn. of America, said, “Companies have a responsibility to develop products that operate within the letter of the law and that do not expose their customers to illegal activities.” Illston’s ruling, he said, “reaffirmed ... that those who seek to profit from the violation of the DMCA and copyright laws will not prevail.”