Screaming Penguin

Continuing "All IP Sunday"... ZDNet notes, and to some fanfare... Brockmeier:

MGM s answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM's side of the case who don't think that example is one bit legal. But they've now conceded the contrary in open court, so if they actually win this case they'll be barred from challenging ripping in the future under the doctrine of judicial estoppel. In any event, though, MGM's iPod example did exactly what their proposed standard expressly doesn't do: it evaluated the legality of the invention based on the knowledge available to the inventor at the time, not from a post hoc perspective that asks how the invention is subsequently marketed or what business models later grow up around it.

Hat tip to Ernest Miller for pointing out Armstrong's post. Miller also points out that, if it’s OK to rip MP3s to your iPod, shouldn’t it be legal to rip DVDs to another medium for personal use? What about using DeCSS to watch DVDs on Linux or other platforms? It should be interesting to see MGM try to wriggle out of this, since I doubt that the company is going to champion any expansion of fair use.

The part they are really missing here is copy-protection. Remember, the DMCA makes any circumvention device letter of the law illegal. That isn't a matter of interpretation of fair use, that is the law. Standard audio CDs don't have any copy protection on them, or didn't at the time the iPod saw wide adoption. DeCSS, however, is a circumvention. The real question is, and this is what the courts still need to decide, is does the DMCA actually eliminate all fair use. That is, does Fair Use still apply on top of the DMCA. If it DOESN'T then that means even the most trivial of DRM scemes will allow publishers to eliminate fair use and issue their own iron-fisted copyright regime because the tools required to exercise fair use will be illegal. I don't see this cession by MGM as altering that dynamic in any way.