Can video iPod lead to DMCA reform?

By Declan McCullagh

Story last modified Mon Jan 23 05:30:00 PST 2006

Apple Computer's video iPod may not be the first portable movie player, but
it is by far the best.

The one serious flaw in this svelte little device is how difficult it is to
load with video. Apple's otherwise handy iTunes application flatly refuses
to transfer a legally purchased DVD to the iPod.

Don't blame Apple for this glaring oversight. You can thank our esteemed
public servants in Congress.

In 1998, politicians bowed to pressure from the entertainment industry and
voted overwhelmingly for the Digital Millennium Copyright Act. Part of that
law made it a federal offense to sell or distribute software that can rip

In other words, believe it or not, Apple CEO Steve Jobs would be guilty of a
federal felony if iTunes transferred DVDs to an iPod as easily as it can
music from a CD.

While these Draconian penalties have angered digital-rights types for years,
the prohibition really hasn't affected a broader audience. But the recently
released video iPod changes this and--if we're lucky--will prove to be a
flashpoint that sparks actual reforms.

"Our best hope for getting amendments to the DMCA is for more regular
consumers to feel the pinch of the DMCA," says Fred von Lohmann, an attorney
at the Electronic Frontier Foundation.

Earlier legal tussles over the DMCA were more arcane and didn't cripple
gadgets prized by the masses.

Take the court rulings against the now-defunct 321 Studios, which used to
sell DVD-copying program. A federal judge in February 2004 ruled that the
DMCA outlawed it.

That decision was widely ignored outside of geekdom. So were legal threats
against security researchers, DVD burning software, toner cartridge refills,
computer science graduate students, Russian hackers and Princeton

There are some proposals in Congress that start to fix the video iPod
problem, but the outlook is hardly sunny.

One bill is the Digital Media Consumers' Rights Act, introduced by Rep. Rick
Boucher, a Virginia Democrat. Another is the so-called "Balance" bill
introduced by Rep. Zoe Lofgren, a California Democrat.

But there are some problems. The latest version of the Boucher bill seems to
be watered down from an earlier one. (The new language is ambiguous but not
as consumer-friendly as it was in the earlier version). And even if it were
enacted, you could legally transfer a DVD to an iPod, but it would continue
to be unlawful to distribute the software that permits the transfer to take

The Lofgren bill comes closer to the mark. It says that in some cases, it is
legal to distribute software that can "circumvent a technological measure"
such as DVD encryption.

Unfortunately, her proposal has virtually no support. And because it's a
bill introduced by a Democrat, it's hardly likely to receive a warm welcome
from congressional Republicans.

More to the point, perhaps, a good portion of the U.S. technology industry
is lined up against DMCA reform.

There's no shortage of enthusiasm for the 1998 law among the political
class--various lobbyists and politicos actually toasted it with champagne a
few years ago, and many software companies love it.

The Business Software Alliance (that is, Microsoft) says the law is
necessary "to curb piracy and its economic consequences." The entertainment
industry is just as emphatic, and so are video game makers.

Still, some glimmers of hope exist for DMCA reform. At a hearing in
November, Rep. Joe Barton, the Texas Republican who chairs the House Energy
and Commerce Committee, seemed to take a common-sense approach.

"It boils down to this: I believe that when I buy a music album or movie
DVD, it should be mine once I leave the store," Barton said.

Hardware makers and Internet providers have also expressed their support for
reform. (The list includes Intel, Sun Microsystems, Verizon, Gateway and Red

Will that be enough? We'll see. It may depend on how rebellious--or
cranky--video iPod owners turn out to be.

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