TVMyiPod Service Legal?

Unfortunately, this is not legal. Fair use is about what you do with your copies, in ways that are not commercial. That you pay a third-party to do this conversion breaks that right off the bat. It's made more that they are breaking the DCMA to get the video off the DVD.

The original MP3.com ran into the same problem with their Beam-It service, where if you bought a CD off their site, you got immediate access to MP3 versions of them, saving the step the ripping the files yourself. They got promptly smacked down.

To quote an expert quoted in story about the Beam-It case:
"There is a long line of cases that say you can use your own copy machine at home to make a copy of a book you own. But you can't take the book to Kinko's and do the same thing, or Kinko's will get sued and it knows that."

So LD, what do you think of my assertion that the content owners do not want a widespread public discourse about the DMCA as it relates to users' rights? Specifically that as a primary reason why they haven't and probably never will sue private citizens for making backups? Beyond that, do you think there's any chance that the video iPod will generate enough discussion to get the DMCA re-examined? Any thoughts on whether the "promise" of managed copying in Blu-Ray and HD-DVD will result in more viewing options (legal home movie servers, legal transfers to PMP devices, legal backups, etc)?

Jeff

Jeff, I remember 321 Studios quote well. If you look at their lawsuit you will see my name as a co-plaintiff.

I never said that anything here was stolen, that's why it is an ANALOGY. The point is that IF they were circumventing CSS, they broke the law before the point fair use was even a defense.
BTW, labor is NOT all that is being sold here. It is a copy of a DVD on an iPod that is being sold (even if they claim that this part of the sale is a free service, it adds value to their other products). Just because they sell the DVD with it does not make it legal. MyMP3.com is a similar case to this. Selling an MP3 copy of a song to somebody that owns the CD is a copyright violation because it is not a private copy made for personal use.
Good luck to them...

I see discussions about the DMCA take place all the time and in many cases there is a lot of misunderstanding about what it does and does not say. For reference, this is a great read on not only what the legislation says, but includes a bit of background on what the intent is:

http://www.copyright.gov/legislation/dmca.pdf

"Only problem is that you have to bypass any copy protection that the DVD may have, and the DMCA says that that is illegal."

The DMCA does not make the act of circumventing copy protection measures illegal. It makes circumventing access prevention technologies illegal. A quote from the document above:

"This distinction was employed to assure that the public will have the continued
ability to make fair use of copyrighted works. Since copying of a work may be a fair use
under appropriate circumstances, section 1201 does not prohibit the act of circumventing
a technological measure that prevents copying."

Nice enough for the DVD format, CSS is an access prevention technology and without access, you can't make a copy.

"I am not at all sure this is illegal. Circumventing encryption for the purpose of playing a DVD, or copying a DVD for distribution, is illegal. But, the purpose here is different. Arguably, it is what has come to be called 'space shifting' of media one owns."

To the contrary, a qoute from teh rest of the paragraph quoted above:

"By contrast, since the fair use
doctrine is not a defense to the act of gaining unauthorized access to a work, the act of
circumventing a technological measure in order to gain access is prohibited."

So, fair use is trumped by the right of the content owner to control access to their content. Remember the 321 Studio folks, makers of DVD X COPY? They tried to argue that since users had fair use rights to copy the works, it was ok for their product to bypass CSS since the end use was just. The courts disagreed and upheld the DMCA.

"Hey, normal people! I think my suggestion that having one's own DVDs copied to the iPod may be a form of space shifting, which is legal, may be the right way to look it at this issue. Fair use applies more to use of excerpts, particulary of print media."

It doesn't matter if it is space shifting and/or fair use. Access control is deemed to be more important and the DMCA gives the content owner ultimate right to decide who has access.

"- TVMyiPod claims to transfer movies using analog means and therefore not cracking CSS"

But the analog output from a DVD is macrovision protected. As of late 2002, "...the sale, purchase, or manufacture of any device that disables Macrovision copy protection will be illegal under section 1201a of the Digital Millenium Copyright Act."

What hasn't happened yet is anyone going after a private individual for backing up their legally purchased DVDs. My guess is that they never will. If they did, it's be a PR nightmare and they'd have to try to explain WHY the DMCA should remain as law. Many americans don't have any idea that the DMCA makes backing or ripping DVDs illegal. If it became an issue with lots of attention, the content owners would almost certainly lose. "What? You mean I can copy my own CDs all day long but not my DVDs? What kind of garbage is that?"

Right now, they are getting what they want without a real public debate. They go after the file traders and companies who produce the circumvention technology but leave Joe Schmoe alone. What I think is interesting is what could happen now that the video iPod is out.

Consider that as of now, there is no movie content available for purchase from the ITMS. If Jobs can't get some agreements with studios to offer such content soon, Joe Sixpack starts to ask "Why can't I just rip my DVDs to it?" They'll ask Apple why they don't offer a tool to do it like they have with CDs in iTunes. When they find out that it's illegal, some will look elsewhere for tools and others will get pissed. Regardless, as the issue grows we could finally see a widespread public discourse about the real impact of the DMCA. The content owners definitely don;t want that.

Jeff

Your analogy doesn't hold, Eric. The device used to copy the DVDs to the iPod is owned by the company, not stolen. In fact, none of the three items involved -- DVD, iPod and the mechanism for making the copy, is stolen. What is being sold is labor. So, what someone else said about the work of making the copy being what is at issue is true.

I'd just like to point out that although this may be illegal in some cases in the usa it is not in europe and many other countries around the world. Although the music lobby is hard at work to make these consumer rights dissapear. I know TUAW is american oriented but you have a lot of international readers so it would be nice if the posts reflected this fact and when making claims like these tried to be as clear as possible. There is enough disinformation out there already.

p.s. please don't feed the trolls, they might stick around.

Space shifting is just a type of fair use.

IF they were ripping the DVDs it would be a DMCA violation regardless of how it was used. Claiming "fair use" for circumventing CSS is like stealing a VCR, taping a TV show, and then claiming fair use when you are charged with theft.

However, if they are using analog copies, then they are still probably in violation of copyright law. See the myMP3.com case which is very similar to this situation.

Thanks buy-proxy. Are you sure about that, though?

If I buy the rights to have a boxing match streamed to my television and allow the regulars of my bar to enjoy what I've watched, then no problem. But if I were to purchase those rights, and then AARRRRRGGGGGG!!!! This is too much... hehehe! I side with TVMyiPod on this, for the record, but know that these organizations really get into the details like this...

You also make a very good point now that I've digested... hmmmm... I suppose we'll see?

H2ORANGE

Small Point:

Yes They are making a Profit, but they are not profiting from someone elses work!

Their profit comes from the work that they do to get the movie on the iPod, ie, the server they are offering.