Fair use has nothing to do with—and can't be used to defend—DRM circumvention, according to the Motion Picture Association of America. The arguments were made during the RealDVD hearing in San Francisco this week, with the MPAA insisting that the DVD copying case isn't about fair use at all, but violations of the DMCA's anticircumvention rules. The two concepts aren't directly related when it comes to US Copyright Law, and the MPAA wants the court to agree that DMCA claims trump all when it comes to copying content.

RealNetworks has been dealing with the legal fallout from its RealDVD software since September 2008—before it was even released to the public. At the time, Real seemed confident that RealDVD operated well within the DMCA because the software didn't break CSS encryption—it merely copied a DVD straight to a hard drive, keeping the encryption intact. Additionally, RealDVD added a new layer of DRM to each file to lock the files to the user and PC that created them, which the company thought would keep it on the movie studios' good side.

But Real thought wrong. Almost immediately, the MPAA sued Real, claiming that the company had violated DMCA anticircumvention rules and referring to RealDVD as "StealDVD." Real sued right back, hoping to get a judge to declare RealDVD legal; instead, a judge granted a temporary restraining order against the company, halting the sales of RealDVD.

Real has long argued during this case that its software merely enables DVD buyers to make legitimate copies of their legally purchased discs—this would theoretically fall under the fair use guidelines in US Copyright Law. As part of its counterclaims filed against the DVD Copy Control Association earlier this month, Real argued that the movie studios were acting as an "illegal cartel" that was trying to stifle competition in the market of fair use copies of DVDs.

Fair use v. circumvention: fight!

Real argued this once again in the hearing this week with the MPAA, saying that the company needs to be able to make copies to a hard drive in order to allow people to use the software's features. Real attorney Don Scott told the judge that making copies of music has long been recognized as "lawful fair use," according to CNET, and that consumers are allowed to make copies of CDs to put on an iPod or some other device without having to pay a second time. Isn't the same true for movies?

The MPAA insisted, however, that the mere act of circumventing DRM in order to make those copies makes one an outlaw; fair use doesn't come into the picture. Judge Marilyn Patel questioned the MPAA on whether it would be considered circumvention to make a copy to a hard drive that was limited to only that drive without the ability to make any further copies. "Yes, it would be circumvention," MPAA attorney Bart Williams said. "And no, it would not be fair use. The only backup copy Congress envisioned was archival, that you would never use until such time when your main computer wasn't working... Congress would not have gone through the process or have this process if you're going to say there is some fair use rights that allows you to circumvent."

Unrelated ideas?

Fair use principles obviously came before the DMCA's anticircumvention rules, but the two are not necessarily related. Fair use is part of general US copyright law and is used when arguing cases of copyright infringement, while the DMCA's anticircumvention rules specifically address the breaking of DRM—whether infringement occurred or not. This, according to the Electronic Frontier Foundation's Fred von Lohmann, is the crux of the MPAA's argument.

"The MPAA's view is that the DMCA's circumvention provisions stand separate and apart from general copyright infringement, so that defenses to copyright infringement are not defenses to circumvention claims," von Lohmann told Ars. "So fair use, on their view, has no application because it's only a defense to copyright infringement."

The MPAA has been using this argument for some time, ever since the first DVD ripping case in 2000 (Universal v. Reimerdes). However, it turns out that this distinction has not been fully tested in court, and the MPAA has had only mixed success with it so far. "In Universal v. Reimerdes (the deCSS case), the district court essentially agreed with the MPAA's argument, but on appeal the court didn't embrace that part of the district court's reasoning," von Lohmann said. (But neither did the appeals court reject it explicitly.)

However, von Lohmann noted that other cases—ones that aren't about DVDs—are increasingly insisting on some sort of nexus with copyright infringement before they will permit an anticircumvention claim through the DMCA. "For example, in [Storage Tech v. Custom Hardware], the court found that there could be no circumvention claim because the activity in question fell within the copyright exception for independent service vendors (17 USC 117). That's a copyright exception (not DMCA exception), and yet the court found that it blocked the circumvention claim," said von Lohmann. "Hard to see why the same wouldn't apply to fair use (17 USC 107)."

Finally, he pointed out that the MPAA implicitly acknowledges that fair use still matters, even if the organization promotes ridiculous and roundabout ways to exercise it. Earlier this month, the MPAA showed government officials how teachers could make legal clip collections for classroom use by pointing a camcorder at a video screen showing a DVD (instead of merely ripping the DVD itself). The MPAA wants to show that circumvention isn't required in order to engage in fair use; other ways of using the material are available, if inconvenient. If the Copyright Office agrees, the movie business could have more ammo against companies like Real in court.

Listing image by Flickr user hypertypos