Fair Use Ain’t As Fair As It Used To Be

While it’s easy to imagine that the federal government (in this case, the Copyright Office) is a bunch of Luddites, sticking to making laws about ancient or obsolete technologies and ignoring the new, the opposite is actually true. 

Every three years, the Register of Copyrights and the Librarian of Congress review proposals from the public requesting changes or updates to copyright law — specifically, exceptions to the Digital Millennium Copyright Act (DMCA).  While it’s great that they review their policies on a somewhat frequent basis, their rulings can still suck. This time, the Register of Copyrights and the Librarian of Congress shot down a proposal that requested the right for consumers to make a legal copy of a DVD they own for playback on devices without a DVD drive, devices such as a tablet, smartphone or laptop.

It’s wonderful that so many devices these days let you play movies. Even my new iPod nano can play videos. But the problem is that there is a very tight grasp on when and where you can watch a movie that you’ve legally purchased. According to the Copyright Office, you can only watch a DVD movie on a DVD player. It’s illegal to make a copy so you can watch it on another device that you also own. Sure, some movies include a Digital Copy, but most of those copies expire within a year of purchase, rendering them useless thereafter.

The effort to allow copying was spearheaded by the public advocacy group Public Knowledge, which is interested in protecting the digital rights of consumers. The Register of Copyrights and the Librarian of Congress stated that this isn’t a case of fair use. However, most everyone, including Congress, the RIAA and MPAA thinks that you should be able to make a copy for personal use. This is why you can rip a CD you’ve purchased onto your computer and then transfer it to your iPhone. Even folks in the movie industry agree with that, which is why they created the UltraViolet system. However, UltraViolet doesn’t take into account DVDs purchased by consumers before that system existed.

The opposition claims that in almost every case, a peripheral device that can play a DVD is available. Can you really imagine plugging a DVD player into your iPhone and taking on your next flight? Yeah, didn’t think so.

“Today’s decision flies in the face of reality. The Register and Librarian were unable to recognize that personal space shifting is protected by fair use. This has implications beyond making personal copies of motion pictures on DVD,” said Michael Weinberg, a Public Knowledge vice president. “Under this view of the law every personal noncommercial space shift is a violation of copyright law. That means, according to the Copyright Office, every person who has ever ripped a CD to put on her iPod is a copyright infringer.”

What do you think?  What’s the difference between ripping a CD and copying a DVD, both for personal use, both onto an iPad? Public Knowledge is proposing a bill before Congress that will incorporate noncommercial personal uses under the current fair use rulings. As they’ve said, it’s time for Congress to step up.

What is interesting is that they did approve the right to copy a snippet of a DVD for use in a documentary or “for the purpose of criticism or comment.”  Let’s all get into the movie-reviewing business – watch your back, Roger Ebert.