Camcording, DVD-Ripping and Normative Behavior: the MPAA’s Disingenuous Argument Against Fair Use
Camcording, DVD-Ripping and Normative Behavior: the MPAA’s Disingenuous Argument Against Fair Use
Camcording, DVD-Ripping and Normative Behavior: the MPAA’s Disingenuous Argument Against Fair Use

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    If you were following the DMCA Section 1201 anticircumvention rulemaking proceedings last week, you likely saw Tim Vollmer’s video of the MPAA’s demonstration on how to create a film clip by pointing a camcorder at a TV set (embedded above). This demonstration was the MPAA’s response to an exemption request filed by educators, who are seeking to exercise their fair use rights by breaking the CSS encryption on DVDs in order to make short clips for classroom use.

    As you’ll recall, a group of media studies professors led by Peter DeCherney successfully filed for just such an exemption in 2006 (for more on that, see our video interview with DeCherney, embedded after the break). Three years later, the educators have returned, in an attempt to renew the exemption and to expand it to include students in media studies classes as well as educators outside of the media studies field. Despite having three years to regroup, the studios returned with the same tired, apocryphal argument: despite the fact that DVD-ripping is already widespread, if educators are allowed to legally rip, demand for DVDs will plummet and the industry will collapse. As an alternative, they suggest camcording, a cumbersome process that produces low-quality clips while requiring a significant investment in video recording equipment. Practical matters aside, the MPAA’s argument for camcording also happens to contradict a number of the organization’s other arguments against fair use–a fact that was not lost on many of the witnesses at last Wednesday’s hearing.

    Of all the witnesses present, Jonathan Band seemed to find the most pleasure in pointing out the logical inconsistencies in the studios’ arguments. Band, as you’ll recall, represented a group of concerned software developers in the proceedings that presaged the creation of the DMCA and in the years since, has represented the American Library Association at the triennial rulemakings (our video interview with him on the topic of the DMCA’s anticircumvention provisions is embedded below). While it’s difficult to tell in Vollmer’s video, the recording that the MPAA made using the camcording method was of visibly low quality. The colors were washed out, details in the picture were difficult to discern and the entire image had a reddish tint to it. Yet, the MPAA repeatedly argued that despite the ubiquity of HD video, such quality is more than sufficient for classroom use. “We’re used to seeing high-quality images,” Band noted, adding, “if we then go to a situation where it’s blurry, it frankly distracts from the impact and educational use”. Going a step further, Band asked, “If the quality of camcorder recording is sufficient, why do rightsholders even bother encrypting DVDs with CSS in the first place?”

    Here’s the answer: the MPAA is intent on controlling the consumer’s ability to capture video in any way, shape or form. They’ve demonstrated this proclivity time and again, most recently in their Selectable Output Control petition, where they attempted to close the analog hole once and for all by gaining the ability to shut off “unprotected” outputs on users’ home audio/video gear. Of course, any attempt to close the analog hole is, by definition, an exercise in futility–as the MPAA has ably demonstrated, an analog recording can be made from any video source, by simply pointing a camcorder at the screen. “This is a wonderful demo,” Band said of the MPAA’s camcording demonstration, “we should put it up on YouTube”.

    The greatest irony of all, however, lies in the fact that the MPAA’s argument against DVD-ripping hinges on the idea of influencing so-called “normative behavior”. While the MPAA concedes that DVD-ripping tools are widely available and that the practice of DVD-ripping is widespread, the organization argues that if educators and students are legally allowed to rip, others will follow their lead and the practice will become normative. Once ripping has gone “mainstream,” consumers will no longer have any reason to purchase DVDs, as high-quality rips of virtually every film will be available online. Of course, high-quality rips of virtually every film are already available online and have been for some time. Yet, the home video market continues to thrive, with the Blu-Ray segment of the market alone poised to move 100 million discs this year.

    Considering the current state of affairs, the MPAA’s argument against a DVD-ripping exemption for educators seems pretty out of touch. It looks downright hypocritical, however, when you consider that the MPAA has spent the last few years crusading against camcording–the ripping alternative that they themselves suggest. Given how much time, money and energy the MPAA has poured into criminalizing camcording both at home and abroad, you’ve got to wonder if folks at the organization ever stopped to wonder if their actions might have the unintended consequence of making camcording normative as well.

    Despite the industry’s protestations, carve-outs exist in copyright law for fair users like educators–whether the studios like it or not. While making life difficult for fair users might discourage a handful of folks from using the studios’ content, the MPAA’s campaign against fair use will likely be far more effective in generating ill-will for the studios, subsequently driving would-be legal users toward easy, illegal alternatives. “We want to comply with the law,” Band said, explaining why the educators had filed for an exemption in the first place. “The bottom line is that [the educators are] going to use this material in their classes anyway, so why make it difficult for them?”