MPAA sues company for selling pre-loaded iPods
Written by Smaran on November 17, 2006The MPAA has launched yet another “defensive attack”, this time on a small business that is pre-loading movie DVDs onto iPods and reselling them. The original DVDs of the movies that are loaded are also given to the customer.
To you and me this might seem like a perfectly fair and legal thing to do. The company, Load ‘N Go Video is basically charging people to load movies onto iPods. Customers pay for the original DVDs, for the iPods and for the service of having them loaded. They even receive the original DVDs they’ve paid for. What’s wrong then? Well, the MPAA isn’t you or me, and their way of differentiating between right and wrong seems to focus on how much money they can make.
The MPAA is claiming that the service Load ‘N Go Video offers is completely illegal because ripping a DVD is against the DMCA. The MPAA is also suing the company for copyright violation.
This lawsuit’s purpose isn’t just to shut down Load ‘N Go Video. It also indirectly implies that it is illegal for people to rip legally purchased DVDs at home. Quite a shame, since this only hurts actual paying customers. “Pirates” are going to continue doing whatever they want. It’s just like the sad truth about DRM. The people that are actually buying songs are being restricted from listening to them on devices of their choice, whereas those who aren’t, remain unaffected.
While writing this article, a very similar incident came to mind, one involving the maker of the iPod, Apple itself. At the original iPod keynote 5 years ago, Apple gave all the atendees iPods … preloaded with songs! And just like Load ‘N Go Video, Apple provided the original CDs too. Jason Snell for Macworld wrote in his Five Years of iPod article:
At the end of the event, we all took home pre-release versions of the iPod, which were already loaded with music. To make the point that the iPod wasn’t meant as a vehicle for music piracy, our iPod packages also contained a stack of audio CDs, the contents of which matched the music pre-loaded on the iPod.
Now the RIAA has motive to sue Apple, right? Wrong. Because private copying of music CDs falls under fair use in most countries. If so, why shouldn’t the same apply to movies too?
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25 Responses
The DMCA makes it illegal to circumvent copy protection. That’s why it’s illegal to rip DVDs. If CDs contain copy protection features then it is illegal to rip them as well.
Apple has music licensing and full rights to rip and sell music through ITMS. Them preloading songs on their own digital player with the rights they have to their music store does not breach the DMCA since they are license distributors. All DVD rippers are against the DMCA because they do not license such technologies to consumers or to any (but a select few) resellers.
In other words, ripping DVD’s is still against the DMCA. There are no legal definitions for fair use, backups, transcoding, etc… They are just assumptions that are legally wrong….until you change them.
@Andrew:
Which is a very fantastic idea considering how cheap the actual medium is. In order to actually use a CD without any fear of having the disk damaged, a backup MUST be made. In my opinion, the initially idea of CD’s was a cash grab. The industry liked the idea of the medium degrading over use, thus forcing people to buy multiple copies of the same disk. Whatever happened to the consumer being able to make AT LEAST one copy for personal use. I will personally never even listen to the original copy of any CD. The first thing I ALWAYS do is rip it onto my hard drive, then make a CD copy for listening to it in the car/CD player/friends house. Of course, my vinyl collection vastly overshadows that of my CD collection, so is making a digital copy of my vinyl illegal as well? Regardless, these practices fall under COMMON SENSE in my opinion, and as a musician I support them fully.
If they were to download a ‘pre-ripped’ copy off the internet and then load that onto an iPod is that legal?
They haven’t circumvented the copyprotection (someone else did) and if they provide the original then the customer has paid for ownership of the intellectual content.
DMCA makes it illegal to circumvent copy protection, which as we all know, DVDs are encrypted as a means of copy protection. Just because you can download software to bypass the protection, does not magically mean that DVDs are not copy protected any more. Get off your soapbox and write your congressman if you don’t like the anti-circumvention clauses of the DMCA.
The DMCA allows you to circumvent copy protection for compatibility. In a sane world, this would include using DeCSS to watch DVD’s under Linux or to transcode them for playback on portable devices. I don’t know if the compatibility clause of the DMCA has been tested in court. Hopefully, Load ‘n Go has enough cash on hand to stand up to the MPAA.
Adam: You’re totally right! They thought “Tapes and Vinyl don’t degrade enough with use, we better start selling CDs that offer higher quality audio that they will have to replace every few years!” Oh wait…
actually you could theoretically create an iso image. That way you are not circumventing any protection. Then you could leagally mount the drive and watch the video on a properly liscenced dvd player for your computer. This could not be charged under the DMCA since you aren’t circumventing any compy protection.(unless you post the iso online ;) You could then have a very legitimate case for fair use under the copyright act. This is what you would need to do to create an arguably legal backup.
Rusty; I agree totally. By transcoding for playback on a portable decive, you are really not making a “Copy” of the original, but simply converting the original to be compatible for your device.
Heres a question to ponder: If I watch a DVD movie, and remember it (effectively making a “copy” in my brain) am I breaking the law? “But officer, I don’t have a DVD drive in the back of my head to play the original”… Some may argue that my memory is for me and me only, and therefore not in breach of any law, but the movies I store on my Ipod or phone are also for me and me only.
I’ll stop converting my DVD’s to portable format as soon as movies are released on MicroSD cards or similar/smaller sized media.
Ok, so why doesn’t Load ‘N Go Video just record the analog video stream from a DVD player, and save the newly-encoded video onto the iPod. It isn’t like the iPod requires DVD quality. Then they can still deliver the pre-loaded iPod with the original DVDs to make it all legal.
[quote comment="22802"]@Andrew:
In my opinion, the initially idea of CD’s was a cash grab. The industry liked the idea of the medium degrading over use, thus forcing people to buy multiple copies of the same disk.[/quote]
Obviously you’re too young to remember vinyl and cassettes then. The reason CDs took off so quickly is people were tired of buying media the degraded every time you used it, and in the case of tapes, also had a substantial risk of the player completely destroying the media completely. CDs may not be archival quality, but they’re a vast improvement over anything prior that was actually used (what good is a record if you never listen to it?).
[quote comment="22818"]Rusty; I agree totally. By transcoding for playback on a portable decive, you are really not making a “Copy” of the original, but simply converting the original to be compatible for your device.
Heres a question to ponder: If I watch a DVD movie, and remember it (effectively making a “copy” in my brain) am I breaking the law? “But officer, I don’t have a DVD drive in the back of my head to play the original”… Some may argue that my memory is for me and me only, and therefore not in breach of any law, but the movies I store on my Ipod or phone are also for me and me only.
I’ll stop converting my DVD’s to portable format as soon as movies are released on MicroSD cards or similar/smaller sized media.[/quote]
That’s kinda the problem, when you consider that there is already optical sensors that will allow blind people to see by implanting in the retina. It’s only a matter of time before the MPAA demands that they build a HDMI plug on the retina attachment and if that isn’t good enough, make Macrovision mandatory.
“DMCA makes it illegal to circumvent copy protection, which as we all know, DVDs are encrypted as a means of copy protection. ”
Let’s be 100% clear here: DVD encryption prevents decryption and playing of a movie on an unauthorized player. DVD encryption does not in any way prevent, discourage, disable, or limit copying of the DVD or of the encrypted bits themselves. Therefore this case will hinge on exactly how Load ‘N Go is transferring the DVD. If they just transfer the encrypted bits onto the iPod where it’s played with an authorized DVD player, then I think the MPAA has no case. If they are decrypting the DVD with an unauthorized player and recompressing or reformatting the movie, then I they may lose.
[quote comment="22797"]The DMCA makes it illegal to circumvent copy protection. That’s why it’s illegal to rip DVDs. If CDs contain copy protection features then it is illegal to rip them as well.[/quote]
You don’t know what you’re talking about. You don’t need to circumvent the copy protection on DVDs in order to either rip or duplicate them. You just copy the encrypted bits. You do need to circumvent the copy protection to play them on a device that doesn’t include the licensed decryption software.
I think that if we are not allowed to make copy’s of anything any more we have a right as a consumer to have a replacement issued free of charge from the record company, as an when the original becomes unplayable.
I am old enough to remember tapes too, & at the time everyone made tapes of vinyl records for in-car use! isn’t it just the same as that ?
Its the same company’s that make the blank disks that are complaining about copyright laws!!! that to me seems ironic!!!
ALL they need to do is get in front of a SANE judge IF they can afford it. They will win. NO SANE JUDGE would convict them.
Second I do not recognize the DMCA as law. Period, I don’t care what the consequences of this may be.
Third Converting my Property into any format I want by any means I want is Fair Use – I do not care if the law says otherwise.
Chris Taylor
http://www.nerys.com/
[quote comment="22809"]DMCA makes it illegal to circumvent copy protection, which as we all know, DVDs are encrypted as a means of copy protection. Just because you can download software to bypass the protection, does not magically mean that DVDs are not copy protected any more. Get off your soapbox and write your congressman if you don’t like the anti-circumvention clauses of the DMCA.[/quote]
CSS is NOT a form of copy protection. With the correct media and correct reader/burner – you can make 1 to 1 copies with the CSS intact. How did that stop the copy from being made – it didnt – the unavailability of the needed hardware to the general public prevents it.
All CSS does is stop region swapping
I’ve heard at the radio this morning that we could win (if we called) an Archos with Depeche Mode songs.
I hope the radio won’t be sued :)
The problem here is you have two laws that conflict. Fair use says you CAN make a backup copy for personal use. The DMCA says you can’t (because it’s encrypted).
Until enough people in this country get fed up and get their govenment representatives to recend the DMCA, the burdon of which is right is placed in the hands of the courts (and lawyers).
If people do complain, and congress doesn’t get it’s act together to work for the people, then it will be up to the people to do what Thomas Jefferson suggested, and overthrow the government now and then, rip up the laws, and start over.
Until this is decided, my judgment is that making backup copies of DVD’s IS NOT ILLEGAL, being protected by fair use.
[quote comment="22809"]DMCA makes it illegal to circumvent copy protection, which as we all know, DVDs are encrypted as a means of copy protection. [/quote]
A minor point here:
This isn’t exactly true. The encryption doesn’t prevent copying the DVD. In fact, any copy of a DVD MUST be encrypted in the same way or standard players won’t be able to play it.
So if you want to copy a DVD, it makes sense to simply duplicate the DVD, encryption and all as one big binary blob. Then the result is another DVD that would look identical to the original DVD and would play just fine on home recorders.
The encryption on the DVD only needs to be broken to play the DVD. This is done everyday in every retail DVD player. Then the issue becomes — can you break encryption in order to provide compatibility with existing DVD players. Theoretically, the DMCA allows decryption for purposes of compatibility.
However, what encryption IS used for, is controlling the distribution and editing of the source material and the manner in which you can watch the DVD.
Distribution: DVD’s and their players are broken into regions. This allows companies like Fox to implement plans like the one previously announced, to release very cheap DVDs in China to compete with pirated DVD’s, while theoretically disallowing those official, Fox-issued DVDs to be exported from China to the US, where they might be sold for a few bucks.
Editing: Given the easy of video editing on today’s computers, if someone wanted to, they can easily sample either video or sound — creating audio mixes that could be redistributed via MP3. Sampled snippets or frames of the video could be reused in other material — some sites could display several seconds of a video, to “prove a point” in another film or for editorial support on a website. Sometimes merely a few small scenes are very controversial or popular. Think of movies like “Eyes Wide Shut”, where American viewer were treated to a sanitized “R” rated version with some “tasteful” sex-club scenes were edited out, but the rest of the world was treated to the full “X” version with those few-second scenes left in.
I could easily see those few seconds being sampled from a decrypted DVD and played on the net as a newsworthy object of how bogus the censoring in America was (is). You can see much more than what was in that movie if you go to a real sex-club in a large city. It isn’t a big deal — really, honest! But that small scene could easily be made available if the entire DVD weren’t “Access-controlled” under the DMCA.
Then there are the viewing restrictions: making you sit through the FBI & Interpol warnings, sit through previews and/or advertisements — essentially, lead in material. If you didn’t have such restrictions, you could have a “Video-Jukebox”, that holds 100, or so, DVDs. The Video DJ could program in the start and end times of video fragments they want to play, and perhaps string together a whole collage of video fragments for people to view as a background during a party — or to string together for any other purpose (collage of sex-scenes, collage of one actor, etc..). In a way, its would be a way of way of “sampling”.
I believe the DMCA restricts breaking “Access controls”, and isn’t limited to breaking “piracy prevention” measures.
This company is likely breaking the required viewing restrictions — do the movies exported to the iPod-player force the user through the initial menus/ FBI warnings, etc…? As I understand it, no. So they’ve hurt the MPAA’s desire to force us to watch the “mandatory” material at the beginning of a DVD.
The iPod isn’t special. A high-end video jukebox company allowed people to buy a high-end player (10-20 thousand?) that allowed “caching” of recently played movies on the player so they could be replayed without inserting the DVD. The MPAA sued them as well. Idiots.
None of the above reflects what I believe customers should be allowed to do with their DVDs. In fact, I would support them being treated in a similar fashion as CD’s. But if the world ran according to my wishes, the world would be rather different from what we have today…:-)
-l
“private copying of music CDs falls under fair use in most countries”
2 questions:
1. based on what case or statute?
2. what makes it private?
@Ray
I guess Smaran is talking about civilised countries like some in Europe :-)
In germany for example the german equivalent of copyrightlaw (Urheberrecht) allowes you to make copies for private purposes[1]
And it even has a special provision with regards to handicapped people[2]
(Note that the MAFIAA is lobying hard to take away more and more Customer friendly clauses of the law)
[1] http://www.gesetze-im-internet.de/urhg/__53.html
[2] http://www.gesetze-im-internet.de/urhg/__45a.html
1. The “copy” of a movie that appears in your mind would not actually be a “copy” because it is not fixed in a tangible medium of expression.
2. Private copying is most likely a fair use, as is private distribution. The statute is section 107 of the 1976 Copyright Act (Fair Use). Although there aren’t any cases directly on point, it is pretty widely acknowledged that private copying is a fair use. In Sony v. Universal, the Supreme Court held that private copying of television shows by betamax recorders for private home viewing was a fair use under the copyright law. The same is likely to be true with regard to private, noncommercial copying of CDs, DVDs, etc. However, digital rights management protections and anti-copying technologies prevent these types of fair uses.
3. Fair use is not a right, legally speaking, it is a defense to copyright infringement.
The biggest problem is that the MPAA got a clue with what happened with unprotected CD’s and added CSS to their DVD’s. The interesting thing abotut his is that CSS was quickly cracked, however, it’s technically illegal to rip DVD’s because there is (easily removable) copy protection. It’s a legal restriction at this point, moreso than a technological restriction, which shows the technological prowess od the MPAA. Anyway, what upsets me is that I can’t legally get a movie for my Chinese MP4 Player. I’d love to buy a video on iTunes but the DRM makes the videos only work on iPods. The only converter I know for an iTunes video file is $40. Then I have another $10 to pay for the movie! I can’t legally rip a DVD. So, MPAA, what do you want me to do? How can I legally accomplish this? The answer: I can’t. And so the DMCA is pathetic discrimination that allows Apple and the MPAA to hold a vertical monopoly. Now, I’m a libertarian, so, ideally, we wouldn’t legislate Apple, we’d kill the DMCA. Since that has no prayer or occuring, I’d hope our government (luckily, we have Dems, who are suspicious of large companies and cartels) can find some way to break this vertical monopoly. What do you think?
Wow! That’s a new low for the MPAA. Now they’re going after a company which gets more people to LEGALLY purchase their dvd’s.
Apple sells movies online which you can put on your ipod. So then should all their customers be sued. And then also sue Apple for encouraging this :)
I think this will make more people pirate movies. Why pay for it if you’re going to be introuble anyway.
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