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No Fair Use Carve-Out for Tablet-Friendly DVD Copies

The Librarian of Congress has declined to provide an exemption
from copyright protections for so-called place-shifting of DVDs to tablets and
other devices.

The Librarian did create new classes of exempt circumvention,
including to access captioning or audio descriptions on the DVDs, or to excerpt
videos for commentary, criticism and educational uses, but on the
recommendation of Register of Copyrights Maria Pallante. Librarian James
Billington eschewed the time-shifting carve-out, which would have allowed the
copying of DVDs so they could be played on tablets or laptops without
DVD-playing capability.

Public Knowledge had argued that the inability to play
lawfully acquired DVDs on the newest platforms adversely affects noninfringing
uses, and that it would be reasonable to allow consumers to solve that by
making a copy for noncommercial personal use that could be viewed on those
devices. Public Knowledge also argued that allowing the copies would not hurt
the market or contribute to piracy.

Content owners had argued against the exemption, saying
there were peripherals that would allow DVDs to play on those other devices and
that consumers had bought a DVD copy of a movie, not the movie itself, and
their only right to access was in that specific format.

The Obama administration backed a version of the Public
Knowledge exemption. The National Telecommunications and Information proposed a
narrower carve-out for DVDs that did not include a digital copy and when
circumvention was just to "space shift" a copy.

Pallante was not convinced that the proposed copy in either
case was not an infringement, saying that "the law does not guarantee
access to copyrighted material in a user's preferred format or technique,"
and that there was "an inadequate basis in the record to conclude that the
developing market for the online distribution of motion pictures would not be
harmed by the proposed uses."

She recommended that a new exemption not be made, and
Billington agreed.

Public Knowledge was not pleased, saying the decision flew
in the face of reality.

"The Register and the Librarian were unable to
recognize that personal space shifting is protected by fair use," said
Michael Weinberg, VP of the Institute of Emerging Innovation at Public
Knowledge. "This has implications beyond making personal copies of motion
pictures on DVD.  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. Even
the RIAA has recognized that such activity is, in their words, "perfectly

Weinberg appealed to Congress. "This legal ambiguity
has gone on long enough. It is time for Congress to step up and explicitly
bring the law into alignment with the way people consume media today. Congress
must explicitly incorporate space shifting into the definition of fair use in
order to make it crystal clear that copying a work you have purchased onto
another device is not copyright infringement."

John Eggerton
John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.