Judge May Ban Copying Software

A federal judge in San Francisco raised doubts Thursday about the legality of software made by 321 Studios that lets consumers copy movies on DVDs, suggesting that she may soon ban the products.

One sticking point for U.S. District Judge Susan Illston, however, was the possibility that the Digital Millennium Copyright Act, the law 321 Studios is accused of violating, is unconstitutional because it lets Hollywood studios control the use of their movies long after their copyrights expire.

At issue are three programs that evade the electronic locks designed to deter consumers from copying a movie onto another DVD or a CD.

The DMCA prohibits companies from selling tools to circumvent the anti-piracy protections on copyrighted works, and the movie studios claim the St. Louis company is breaking the law. The movie studios have asked Illston for a pretrial order barring 321 Studios from distributing its programs; the company wants a jury to decide whether its products are legal.

Illston said she was “substantially persuaded” that 321 Studios’ products violated the DMCA and noted two recent rulings against the distribution of other programs that circumvent electronic locks: the DeCSS software for copying DVDs and ElcomSoft Co.’s program to decrypt certain electronic books.

Daralyn Durie, an attorney for 321 Studios, countered that its products are different because they have a legitimate purpose -- helping consumers make back-ups of the discs they own -- that outweighs any illegal use. Besides, she said, the DMCA prohibits circumvention only when copyright owners don’t authorize it, and studios have clearly authorized consumers to gain access to the movies they buy on DVDs.

Russell Frackman, an attorney for the movie studios, said the statute requires the software maker to get permission from the studios to circumvent the anti-piracy controls.

Manufacturers of DVD players are authorized to unlock discs, he said, but 321 Studios is not.

Durie also argued that the DMCA is unconstitutional because it grants movie studios what amount to permanent copyrights -- the law allows them to continue putting out uncopiable DVDs even after their copyrights have lapsed.

That point caught Illston’s attention. She pressed the issue with lawyers for the studios and the U.S. Department of Justice, which is defending the DMCA.

Frackman said the DMCA’s anti-circumvention provisions don’t take any works out of the public domain. He also noted that the creators of a work are never obligated to make it available to the public in an unprotected format, either before or after their copyrights lapse.

Illston promised to issue a ruling soon on the studios’ request to decide the case without a trial.