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

Librarian of Congress declines to create new class of exemption for 'place shifting'

By John Eggerton -- Broadcasting & Cable, 10/26/2012 8:57:00 AM

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 lawful." 

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."