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Copyrights and wrongs

When is it art and when is it stealing? To judge by a pair of recent court decisions, it is all stealing, all the time.

When is it art and when is it stealing? When is it software back-up and when is it stealing? To judge by a pair of recent court decisions, it’s all stealing, all the time. In seven years at ComputerUser, I’ve never gotten more queries from readers about a single product as I have about the 123 Copy DVD software program. I’d been sent a copy of the product this spring, and when I took it home and installed it, I was stunned at how simple and foolproof it was.

Running it was a simple matter of clicking a sequence of two buttons–one to copy the contents of a DVD to the hard drive, and one to burn those contents to a blank DVD-R. If you have a pair of connected DVD-RW drives, it’s a one-button job. And if the program encounters a copy-protection scheme on the DVD being used, it connects you to a Web site for a workaround update. In the vast majority of cases, you’ve got a clone, extras and all, of any DVD in 20 minutes.

One wonders what the makers of 123 Copy DVD are thinking, considering the fate of their apparent namesake, the now-defunct 321 Studios, makers of DVD Copy Plus and DVD X Copy. In February, after a flurry of lawsuits from movie studios, a U.S. District Court judge ordered 321 to stop making and distributing any products that bypassed the Content Scramble System used to protect DVDs from copying. That order drove existing copies of the two products underground, where they were quickly sold at inflated prices and–oh, the irony–widely counterfeited. A challenge by 321 to the February ruling was rejected in September, finding in favor of one of the original plaintiffs, the DVD Copy Control Association.

The purported primary use for both 123’s and 321’s products are to make back-up copies of expensive or irreplaceable DVDs. But it doesn’t take much of a stretch to imagine users making backup copies of DVDs from their friends, the library, or the video store. It would be fair to call both companies brazen, and their rationalizations ridiculous. But just as ridiculous is Motion Picture Association of America head Jack Valenti’s assertion that if DVD owners want a backup copy, they should simply buy another one. Digital data is a fragile thing, but apparently so is the trust between makers and consumers of digital media.

The courts also came down decisively on the side of copyright holders in a case involving the use of digital samples in music. Also in September, a federal appeals court ruled that artists must pay for every digital sample used in their work, regardless of length or context. The dangerous thing about this decision is that it presumes no difference between the use of a half-second sample and the unauthorized reproduction of a song in its entirety, with nothing added to it; to the court, it’s all under one giant umbrella labeled piracy. The decision also refutes the value of collage art in general, in both its visual and musical forms. And, it ignores the fact that the fair-use doctrine of copyright law is still a work in progress that hasn’t come close to catching up to life in the digital age.

If any licensing requirements related to sampling are to have their intended effect, a sliding fee scale needs to be created that takes into account a number of variables, such as how long the sample is, where it’s placed in the mix, whether and how it’s been manipulated, and after the fact, how much money the record with the sample made and how much the use of the sample contributed to its success. It might not be an easy or practical way to figure fees, but at least it’s equitable.

As things are, the copyright owner can ask for the moon, sometimes for whole ownership of a song in which their sample played only a minor role (see Allen Klein vs. The Verve). How do scenarios like that “[not stifle] creativity in any significant way,” as the court promised will be the case if sampling laws are absolute and iron-fisted?

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