Cox Employs 'Three Strikes' DMCA Policy > Contract Law

reply to MrMoody

Re: Contract Law

quote:

---

(c) OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

---

quote:

---

"The plain language of the statute ... requires a plaintiff alleging circumvention (or trafficking) to prove that the defendant's access was unauthorized-a significant burden where, as here, the copyright laws authorize consumers to use the copy of Chamberlain's software embedded in the GDOs that they purchased."

---

Again, not entirely correct.

Making a backup copy for personal use *may be* legal fair use.

Using DeCSS to break the protection to make that copy, violates the DMCA.

So, if your Adam 12 DVDs didn't have CSS, then you'd be ok. Now whether there'll ever be a prosecution for using AnyDVD or DVD43, I can't say. The DMCA, however, does render otherwise legal fair use into banditry.

From UNIVERSAL CITY v REIMERDES:

We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. Although the Appellants insisted at oral argument that they should not be relegated to a "horse and buggy" technique in making fair use of DVD movies,36 the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.

The particular facts and litigation posture of the defendants was pivotal in this case. The district court found that the "primary purpose" of the defendants' actions was to promote redistribution of DVDs in violation of copyright laws, because the defendants admitted as much. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 346 (S.D.N.Y. 2000). The finding was upheld by the Second Circuit Court of Appeals on the specific facts of the case, but the appellate court left open the possibility that different facts could change the result. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001), at footnotes 5 and 16.