Feds considering allowing DVD-encryption cracking

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The U.S. Copyright Office heard requests for loopholes in its rules this week.

Federal regulators considered testimony Wednesday here at UCLA Law School on whether to allow citizens and filmmakers to legally crack DVD encryption meant to protect the discs from being copied.

Filmmakers, video mixers and others have petitioned the U.S. Copyright Office for the ability to continue to use DVD decryption tools to copy short clips of DVDs from motion pictures to put into their own films. The issue isn't whether they have a fair-use right to the material, but whether they can utilize decrypting tools to make the best reproduction for film-making purposes.

Another proposal for the first time calls for the public at large to be authorized to make copies of their own DVDs without breaching the Digital Millennium Copyright Act of 1998, which makes it unlawful to circumvent encryption technologies in items that you buy.

Earlier in the day, here at UCLA, regulators held a hearing as part of its deliberations over whether it will continue to allow Americans to jailbreak their mobile phones, and whether they will expand that right to cover tablets and video game consoles. Jailbreaking and rooting are techniques used to get past manufacturer-installed roadblocks that prevent users from having full control over their devices.

Every three years, the U.S. Copyright Office entertains requests to create temporary loopholes in the law that outlaws the circumvention of encryption technologies. The afternoon public hearing largely focused on the so-called CSS that must be cracked to make a copy of a DVD. All DMCA exemptions, which are proposed by the public, expire in three years and must be reauthorized by the Copyright Office.

Clarissa Weirick, the general counsel of Warner Brothers Home Entertainment, testified against all the decryption measures.

"If we didn't have access controls, there might be the same kind of mass piracy we've seen with unprotected music," Weirick said about the copying of DVDs, a proposal put forth by digital rights group Public Knowledge, which did not attend the hearing.

Weirick, a representative from Fox and the major motion picture studios under the Motion Picture Association of America opposed all the measures proposed in the afternoon public hearing, which included about 2 dozen members of the public in attendance.

They said that there is no need to grant the public the right to make copies of their DVDs because the studios are streaming and selling movies online now, and that the public does not own the movies they buy on DVDs. They own the license to play it on a DVD, they argued.

And when it comes to cracking encryption to make snippets out of films to be put in new films, the industry opposed reauthorizing the cracking of the DVD encryption for that purpose. The industry testified that filmmakers instead can use screen-capturing software or they can license the clips from the studios.

Filmmakers oppose that because of the poor quality of screen-capture reproduction.

(Screen-capturing does not crack encryption because it copies what is shown on a computer screen.)

Filmmaker Laurence Thrush testified that screen-capturing software turns clips into “mush.”

"The fabric of reality is very important to these projects," he testified.

Jonathan McIntosh, a remix artist, was also asking the regulators to allow him to bypass circumvention that prevents the copying of streamed movies so that he may use the best picture quality available of the snippets he places in his own films. Doing so, he said, helps "to engage in a healthy public debate."

He said he has a "zero budget" when it comes to paying for a license, some of which carry clauses that forbid filmmakers from disparaging the movie.

Maria Pallante, the register of copyrights, wondered aloud:

"But I think we’ve heard the market is changing rapidly. Licensing options are changing. Conceivably even with a budget of zero, permission might be possible," she said.

Corynne McSherry, the intellectual property coordinator with the Electronic Frontier Foundation, told Pallante and other top-ranking lawyers in the U.S. Copyright Office here that granting the exemptions at issue is "not going to help pirates," so they must be granted.

Exemptions are allotted by the Copyright Office if regulators are convinced consumers are "adversely affected in their ability to make non-infringing use due to the prohibition on circumvention."

Approved exemptions by the Copyright Office must be also be sanctioned by the Librarian of Congress, currently James Billington. Regulators are not expected to make any approvals until later this year, at a date not yet disclosed.

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