321 STUDIOS BEGINS PROTESTS ON DVD-COPYING SOFTWARE BAN

In a week-long campaign to protest what it called the “fair use paradox” in the ruling that prohibits it from selling copying software with an encryption descrambler or “ripper,” 321 is encouraging consumers protest the ruling to Hollywood, the courts and Congress. The injunction against sale was issued Feb. 20, when Judge Susan Illston of the U.S. Dist. Court, San Francisco, ruled that 321 violated the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) by including a DVD ripper in its DVD backup software. While Illston’s ruling acknowledged there are legal fair-use applications for copying copyrighted content, she ruled narrowly on the illegality of commercial trafficking in circumvention devices, as codified in the DMCA.

Each day this week, 321 consumers will be encouraged to contact a different target audience about the court decision. Those constituencies include movie studio executives, the courts, members of Congress and the media, 321 said. Consumers will be able to send messages through www.ProtectFairUse.org -- a website sponsored by 321 Studios that provides information and links resources.

The campaign began Mon. with a video e-mail from 321 Pres. Robert Moore to some 600,000 of 321’s customers, asking them to send protest letters to their local newspapers. Today, 321 customers and digital rights activists will be encouraged to e- mail the Hollywood studios that won the injunction. Additionally, a truck with banners reading, “You're no pirate, but some Hollywood executives say you are. Tell the studios you'll fight for your right to backup DVDs you own. www.ProtectFairUse.org.” will travel to key points around the L.A. area. An online ad campaign will be launched and consumers will be able to send e-mails to the movie studios by clicking on the ad.

The protest continues Wed. with a phone campaign encouraging consumers to telephone studio executives directly. The campaign moves to Capitol Hill Thurs., with 321 supporters asked to e- mail, fax or telegram their Congressional members free through the 321 website, and encourage them to support legislation to amend the DMCA. The campaign concludes Fri. with an effort to spread information on the case to popular online forums, technical and consumer websites, and advising visitors to those sites how to send protests to the studios and others.

The Electronic Freedom Frontier (EFF) is supporting 321 in the protest campaign. “The public’s rights to fair use of copyrighted works should not disappear in the face of technological restrictions,” said EFF staff attorney Wendy Seltzer Mon. “To bring back copyright’s balance, we encourage individuals to write to Congress and the entertainment industry about their expectations when purchasing movies and other media.”

The EFF also was instrumental in the DeCSS case overturned in Cal. late last Fri., when the state appellate court in San Jose overturned as unconstitutional a 1999 trade secret injunction against Andrew Bunner that prohibited him from distributing the DeCSS DVD decryption code. In its ruling, the appeals court found there was no evidence that the Content Scrambling System (CSS) encryption technology used in DVDs was still a trade secret by the time that Bunner posted the DeCSS code on his website, the EFF said. The Court held that the injunction violated Bunner’s constitutional free-speech rights.

“We are thrilled that the Appeal Court recognized that the injunction restricting Andrew Bunner’s freedom of speech was not justified,” said EFF staff attorney Gwen Hinze. “The Court’s ruling that there was no evidence that CSS was still a trade secret when Bunner posted DeCSS vindicates what we have said all along: DeCSS has been available on thousands of websites around the world for many years.”

The DVD Copy Control Assn. (DVD CCA) sued Bunner and others in 1999 for posting, or linking to, the reverse-engineered DeCSS code. The Cal. Supreme Court last year ruled that a preliminary injunction restraining publication of a computer program could be constitutionally justified only in very narrow circumstances, and sent the case back to the appeals court. As a result of last week’s ruling, the case will now return to the Superior Court, Santa Clara Cty. Bunner has a pending motion there for summary judgment, in which he seeks a similar ruling that he is not liable to DVD CCA because the CSS information is no longer a trade secret and is in the public domain. The DVD CCA has sought to prevent the Superior Court from hearing the motion by trying to dismiss its case against Bunner recently without prejudice to suing him again in the future, the EFF said.

Separately, although 321 has been enjoined from making and selling backup software with a CSS ripper, existing inventories of the original product remain at retail and continue to be sold. CompUSA this week is running a special on the original DVD X Copy Xpress for $39.99 after $30 in rebates. Since the ban went into effect Fri., 321 has been selling and shipping only “ripper-free” versions of the programs. Retailers aren’t bound by the injunction, a 321 spokeswoman told us Mon. Moreover, when purchasers of the older stock log onto 321’s website to register and activate the software, they will retain the version with the ripper -- and not be “upgraded” to the new “RF” version. That also applies to customers who bought the ripper versions before the sales ban but didn’t register them at the time. As it has previously said, 321 will not offer downloadable upgrades for the older ripper programs until and unless the injunction is stayed, or reversed on appeal.

Meanwhile, Macrovision’s request for an injunction against 321 Studios’ sale of DVD copying software has been pushed back a month, executives from the companies told us Mon. A hearing set Feb. 27 in U.S. Dist. Court, N.Y.C., was postponed 30 days owing to conflicts in the judge’s schedule. Besides the sales injunction, Macrovision has sued 321 in N.Y.C. alleging patent infringement on its copy protection technologies as well as violations of the Digital Millennium Copyright Act. 321 has said it would contest Macrovision’s suit. The DVD Copy Control Assn., which owns DVD’s Content Scrambling System encryption, also has sued 321 in N.Y.C. claiming patent infringement.