DVD COPIER MAKER SUES MOVIE STUDIOS ON DMCA THREAT
In direct challenge to constitutionality of Digital Millennium Copyright Act (DMCA), software developer 321 Studios sued 9 Hollywood movie companies that sought to block sale of its video copying program. Complaint, filed Wed. in U.S. Dist. Court, San Francisco, seeks no damages but asks for declaratory judgment stating that 321’s DVD Copy Plus software doesn’t violate DMCA’s anticircumvention provisions, doesn’t unlawfully aid consumers in infringing copyrighted material on DVDs, and enabling 321 to continue selling program.
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Complaint charges that studios, acting in part under auspices of MPAA, threatened to sue 321, claiming that sale of DVD Copy Plus was illegal under DMCA. Program enables consumers to use PC with DVD-ROM drive and CD recorder to copy DVD movie content to blank CDs as compressed “backup” in Video CD or Super Video CD formats for playback in DVD players or in DivX compression format for PC play. Companies named in complaint are Columbia Pictures, Disney Enterprises, MGM Studios, Pixar, Saul Zaentz Co., Sony Pictures Entertainment, Tristar Pictures, Universal City Studios and Time Warner Entertainment. MPAA, Paramount and 20th Century Fox weren’t named.
In suit, 321 argued consumers had right to make backup copy of DVDs they owned. It cited disc’s susceptibility to damage from scratches, heat or light that could make it unplayable. Company said its product included notice alerting consumers to fact that program wasn’t to be used for unlawful copying, such as from rented DVDs, or commercial gain, but only for archival backup for personal use. Complaint said “it is unlikely that DVD Copy Plus has been used by many customers, if any, to make bootleg or otherwise illegitimate copies of DVDs” because “it is wholly impractical to use DVD Copy Plus as a method of mass- producing bootleg copies of DVDs. The process of accessing and making a backup of a DVD video takes between 4 to 6 hours.” Suit also contended DVD Copy Plus copied only motion picture content of DVD, not interactive menus or navigation functions, and quality was “lower than the original DVD video, but better than VHS videotape.”
Suit alleged that defendants had claimed DVD Copy Plus was illegal and threatened litigation to stop its sale. It said allegations and legal threat were made in March 11 news report distributed by Gannett News Service. Plaintiff said: “The specter of such litigation against 321 Studios has a chilling effect both on its business and on its First Amendment speech rights.” Robert Moore, pres. of 321, said statements in newspaper report prompted company to “proactively” file suit “not only to receive the court’s assurance that we are in compliance with the law but also to raise the broader question of how Americans’ First Amendment rights can be protected in this digital age.”
Neither defendants nor MPAA had comment on suit at our deadline. Representing 321 in suit is Keker & Van Nest, same San Francisco law firm that’s assisting in defense of Elcomsoft DCMA prosecution.