Manufacturers, Content Industry Look to Define Boundaries of Digital Millennium Copyright Act

Mozaex’s new multiroom Blu-ray 3D server (CED Aug 10 p1) underscores the fine line between what server manufacturers consider legal when it comes to products that store movies for distribution throughout a house and what copyright-protection groups want to shut down as violating the Digital Millennium Copyright Act. Michael Ayers, spokesman for the Advanced Access Content System, told Consumer Electronics Daily that Mozaex, like any PC manufacturer, needs no license from AACS to add a Blu-ray drive to its server. The manufacturer of the drive and the publisher of the software player application do have to be licensees, he said, and they must obey copyright laws prohibiting illegal copying of software. Mozaex’s position is that it simply makes a server and it doesn’t provide a way to rip movies to a hard disk or control what a consumer does after buying the system.

Ayers, though not familiar with Mozaex or its product specifically, said “the issue that could potentially come up is, although a computer company like Mozaex or HP isn’t responsible if consumers put their own ripping applications on the machine, certainly there are different arguments that could be raised if a manufacturer or installer handed you a product and said, ‘Wink wink, nudge nudge. Here’s where you could get a ripper, but I didn’t tell you, wink wink, nudge nudge.'"

A server manufacturer that doesn’t overtly encourage consumers or dealers to rip discs to a server may instead leave it up to consumers, Ayers said. “If he says, ‘It’s up to you. If you want it, here’s where the ripper tool is,’ is that trafficking?” Ayers said. “I don’t know.” Mozaex requires installers to agree to terms of use before setting up its server, CEO Douglas Kihm told us. “Before you can use our product, you have to acknowledge that Mozaex is indemnified,” he said. “We're transferring the responsibility and liability to the person who uses the product” -- the installer or the end-user. “They take it upon themselves to fully obey the laws and read up on them,” Kihm said. If consumers decide to load movies onto their Mozaex systems, they need, of “their own volition and under the observance of any outstanding copyright laws” to “get their own decrypting tool and load that on our box,” he said. Kihm said the tools are readily available in the market. “We don’t provide assistance,” he said. “We don’t induce. The bottom line is, we are 100 percent legal because we don’t make, ship or provide anything illegal, and we never will.”

Another controversial point is fair use. Courts have said the DMCA doesn’t necessarily trump fair use protection of copying, Ayers said. Users might be able to make the case that copying a purchased movie falls under fair use and doesn’t violate the DMCA, he said. “That’s OK as far as the copy itself is concerned,” Ayers said. “However, to the extent that you might have used a ripping tool to circumvent the effective technical measure used to protect that content, that’s a DMCA violation whether the underlying copying was fair use or not."

So where do installers and consumers fit in to the picture? If an installer, working with the cooperation and knowledge of a product supplier or not, is installing a ripper with a home theater server that’s being put in, Ayers said, “one might argue that he’s trafficking and therefore he'd be running afoul of the DMCA.” Consumers present a bit of a public relations issue, as the RIAA found out targeting users of the original Napster system. When content owners tried to shut down Napster, the company contended that the service could be used for legitimate purposes and that the RIAA should go after those using the service improperly. “So RIAA goes after individual infringers and they get criticized for that,” Ayers said. “You're damned if you do, damned if you don’t.” As a practical matter, he added, “It’s resource-intensive to go after individual consumers. But again, if the consumer is purchasing one of these tools, you might be able to raise the argument.”