Limitations on Personal Use of Encrypted Content

By: Naehee Kim and Tristen Lall

As the ways of creating, publishing, distributing and consuming media content have evolved, the dynamics between a copyright holder’s rights to its works and an individual user’s rights to his physical possessions have changed accordingly. Since many copyright holders want to keep or extend their control over their works, they have continuously developed methodologies to protect their rights. In some cases, these protections have been arguably excessive, and customers have been deprived of the ability to make personal, noninfringing use of that content.

Music service providers, for example, regulated users’ behavior by implementing digital rights management (DRM) technology and policy in the early 2000s. However, through a combination of litigation, consumer protest and adoption of new business models, record companies and customers have adopted a new de facto standard for consuming digital music: music lovers nowadays enjoy DRM-free music by paying reasonable prices like $0.99 per track, and enjoy full portability of the audio files. On the other hand, with encrypted content—like DVDs, HD DVDs and Blu-Ray Discs—consumers are still seriously limited in terms of using them for personal purposes.

Even though there are numerous justifiable (and even generally legal) ways to copy digital media for personal use, commercial DVDs implement a copy protection scheme that hinders this process. While a music lover can easily and legally rip their audio CD, convert the music into an MP3 (MPEG audio layer III) file, and transfer it to a device using a variety of free or commercial software (a process called format-shifting, often considered a fair use under copyright law), this process is not possible with a DVD, because it implements a form of encryption called CSS (Content Scramble System). The Digital Millennium Copyright Act (DMCA) provides that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.” Consequently, so long as the CSS system is considered “effective”, it is a violation of the DMCA to override it. (Note that in Finland, a court has ruled—subject to appeal—that because CSS can be trivially bypassed using a brute force method, it is no longer “effective” as that term is defined in international intellectual property accords. Although this determination has not yet been made in United States courts, this is a possible avenue of attack for litigation opposing DMCA-based restrictions on DVD copying.)

To take advantage of the limited fair use exceptions, DVD owners are limited to making copies in a manner that does not override the CSS—for example, copying the entire file system of a DVD into an image file, while preserving the encryption. This is, however, insufficient for making a usable backup DVD with ordinary DVD-writing devices, because those drives are designed to be unable to write the encryption key in the proper place on the disc. (What results is a disc containing an accurate copy of the encrypted data, but without the key, it lacks the ability to be interpreted by a DVD player.) RealNetworks attempted to work around this problem by licensing the DVD CCA specification and implementing it in software called RealDVD that enabled users to play fully-encrypted DVD image files from the storage media of their choice. By avoiding CSS circumvention, RealNetworks believed that its product provided a legal means for users to exercise their personal use rights. Despite this promising argument, the U.S. District Court for the Northern District of California found that “RealDVD makes a permanent copy of copyrighted DVD content and by doing so breaches its CSS License Agreement with DVD CCA and circumvents a technological measure that effectively controls access”. The sale of the RealDVD software was therefore prohibited.

These inconsistent principles have put consumers in tricky situations: to make useful backup copies of their DVDs, they can only use illegal copying tools. More recent digital media like HD DVD and Blu-ray Discs have adopted another type of DRM called Advanced Access Content System (AACS), which allows consumers to make limited legal copies (managed copies) that may satisfy some users’ expectations of personal use. Notably, however, these are not true backup copies. They depend on internet-based authentication, and cannot themselves be reproduced using the managed copy technique. This raises issues related to long-term archival (e.g. due to degradation of media), and the future availability of the AACS authentication service.

As new technologies and social norms emerge, it may yet become practically and legally possible for digital media owners to make personal, noninfringing use of those resources. At present, however, the wide-ranging anti-circumvention provisions of the DMCA (and similar international agreements, like the just-signed Anti-Counterfeiting Trade Agreement) make it almost impossible to do so, to the substantial detriment of consumers.
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