By W. Scott Cameron
Last month, in a lawsuit filed in the U.S. District Court for the Southern District of New York, the Motion Picture Association of America (MPAA) companies sued Load ‘N Go Video, a small company that loads customer purchased DVDs onto their personal iPods, for copyright infringement and violating the Digital Millennium Copyright Act (DMCA).
Based out of Boston, Load ‘N Go was founded in 2005 to help consumers get video content on to their portable media players, such as iPods. Load ‘N Go sells iPods and DVDs to their customers, who pay the company an additional charge to load purchased DVDs onto their iPod or other portable video player. Load ‘N Go then sends both the customized iPod and original purchased DVDs back to the customer.
 Paramount Pictures, Twentieth Century Fox, Universal Studios, Warner Bros Entertainment, Disney Enterprises, Columbia TriStar Television and Columbia Pictures
The MPAAs describe in its complaint that before releasing their copyrighted works in DVD format, they employ a Content Scramble System (CSS), which is an encryption-based DVD access control and copy prevention system that provides for protection of copyrighted content. According to the MPAA, the service provided by Load ‘N Go circumvents the CSS, thus violating the DMCA. The MPAA further highlights that Load ‘N Go has not been granted a license to copy, distribute or exploit their copyrighted works or to circumvent the CSS.
Technically and legally speaking, the MPAA makes valid points, as the DMCA prohibits the circumvention of copy protection. However, taken to its logical extreme, a buyer could be subject to legal liability for ripping purchased DVDs at home without first seeking permission or purchasing the content again, through a service provider such as iTunes, for specific portable media player use. Critics note that the studios are effectively attempting to force consumers to buy the same content twice—once on DVD and another time in a format suitable for the iPod or other portable media device.
Load ‘N Go asserts that the process it uses does not involve decryption and further, that it is engaging in “fair use” for copyright purposes and that such fair use trumps the MPAA’s claims under the Copyright Act and the DMCA. Fair use is a doctrine that allows limited use of copyrighted material without requiring permission from the rights holders. Section 107 of the Copyright Act of 1976 contains a list of various purposes for which the reproduction of a particular work may be considered “fair” and lays out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
(17 U.S.C.§ 107.)
Although there is historical precedent of the fair use doctrine with copying and backing up CDs and software, the MPAA distinguishes DVDs because of their encryption copy protection. This area of law is still highly controversial and hotly contested. To date, the motion picture studios have been successful in protecting its copyrighted works. However, with the rapid growth and expansion of the Internet and portable media devices, the stage is set for new interpretations and/or exceptions to be carved out of the DMCA.