In the time period since, most users of digital media purchased DVDs and music without noticing that they were often paying multiple license fees, all for the privilege of watching or listening. For example: when you buy a DVD, you are paying for a license to watch it; when you buy an operating system for your computer, a portion of the purchase price goes towards another license; when you buy blank DVDs, a portion of the price is basically placed in escrow to be dispersed to the artists and others. If you don’t own a computer, the price of your DVD player includes a fee that the manufacturer must pay to an organization representing the artists on the DVD. So today when you buy a DVD and decide to make an archival copy of it using a proprietary operating system, you have payed for the privilege three times.

The extra money that you shell out when you are buying a computer operating system or DVD player is for a license to decrypt the DVD movie’s encryption known as CSS, or content scramble system. Non-proprietary and free operating systems do not have this decryption capability, which is why Linux users have been without DVD support even if they legally purchase a DVD.

The recording and motion picture industries began experimenting by using technical protection measures on copyrighted works in the mid-nineties. These technical protection measures acted as digital locks that could control the ways that an end user could use a work such as a music CD or DVD movie. With 1998 came the advent of the Digital Millenium Copyright Act, and takedown notices soon became prevalent when trying to discourage circumvention of protection and unauthorized access of digital works. The DMCA made circumvention of these digital locks or unauthorized access of the works underlying the locks illegal. Soon after the enactment of the DMCA, DRMs (a type of technical protection measure) became an easy way for the recording and motion picture industries to gain extra revenue. The DRMs that are prevalent preclude copying of the work they are applied to, or they may allow access to the work only for a specified period of time. Avoiding these protections violates the law.

A file protected with DRM or another technical protection measure gains legal protection in addition to that provided by copyright. Even when the underlying work is unprotected by copyright, one who circumvents a technical protection measure or accesses a work without authorization may be liable under the DMCA for doing so. The person ‘may’ be liable because the question of whether copyright law and the DMCA are independent of each other has not been answered.

A working example is illustrative. Recently, the Motion Picture Association filed a complaint in a Federal District Court in LA requesting an injunction against the sale of Real Network’s RealDVD software, saying that the RealDVD software violates the DMCA by allowing its users to copy DVDs to their computers. The MPA claims that these copies are achieved by circumventing the CSS protection in the DVD disks. Real Network, who recently released RealDVD, claims that the copy is a fair use archival copy recognized under copyright, and that the DMCA is not meant to apply to otherwise fair uses of works. The Los Angeles judge will have to determine whether the DMCA is to apply in cases where there is no actual infringement alleged. The LA District Court judge hearing the case recently asked an MPAA attorney if he thought that a consumer had a right to make a personal copy of a purchased DVD; the attorney said “Not for the purposes under the DMCA.”

If the DMCA can be applied when there has been no copyright infringement, there may be far-reaching consequences. Works in the public domain, or works no longer under copyright protection, could be locked up indefinitely with technical protection measures. Thus, accessing a work in the public domain by circumventing a technical protection measure could lead to considerable liability even though the underlying work is not protected under copyright. More to the point, DVD and CD lovers will be unable to make copies in case the original copy is destroyed. Instead, those people will have to purchase another copy, something the MPA would enjoy.