Saturday, November 14, 2009

"The Future of the DVD"

On Monday, I was in attendance at the haunting Varnish Gallery in San Francisco, where the Electronic Frontier Foundation presented a panel and happy hour event, titled "The Future of the DVD."

The panel was moderated by EFF's Senior Staff Attorney, Fred von Lohmann. Fred introduced three main talking points for the evening, each highlighting some apparently conflicting interests between Hollywood (dubbed as "big content") and consumers of DVD's.

First, he noted that consumers want to be able to space-shift and format-shift the content that they purchase. Users need to be able to take advantage of their fair use rights, for instance, when making back-up copies of their DVD's.

Second, he touched upon the charged atmosphere surrounding DVD rental. Due to the increasingly ubiquitous nature of "Redbox" kiosks, movie studios are threatening to withhold wholesale pricing for new releases and are attempting to impose a period of delay between movie release dates and Redbox availability.

And finally, Fred reiterated the 'Remix'/creativity theme that academics like Lawrence Lessig have considered to be absolutely vital in this changing technological climate. Fred mentioned how the EFF was pushing the Copyright Office to recognize another DMCA exception, this one to allow users the ability to use clips from DVD's to remix movies in the creation of works of fan-fiction or in the remixing of other non-commercial, transformative works (e.g., music videos).

The rest of the panel hour was comprised of two stories. The first was that of Kaleidescape, and their product, movie server systems [if you have never heard of the company or their line of products, it is probably because an entry level system will run you at least $8,000...the systems average $30,000 each]. Kaleidescape CEO Michael Malcolm commented on the absurdity of the movie studios "rent, rip and return" claims. Given the nature and expense of the systems, he argued that movie server users are not typically engaging in this behavior [if you have the money to buy a system, you can afford (and are likely) to purchase movies outright].

The second story was a more familiar narrative, the RealDVD case. Deputy General Counsel for RealDVD, Bill Way, discussed his frustrations with Real's attempt to work collaboratively with the studios; he claimed that RealDVD's product was actually in the best interests of the studios. As opposed to open, unencrypted DVD burning programs and devices, RealDVD actually only makes encrypted copies, and thus provides for certain security measures. Their product, he stated, is strictly "designed to limit [the user] to fair use rights..."

Bill went on to further discuss RealDVD's ongoing litigation. A declaratory judgment was initially filed by RealDVD in the Northern District of California, and a concurrent temporary restraining order was filed by the movie studios in Los Angeles. The two suits were combined and heard in the Northern District, where Judge Patel ultimately issued the TRO. On Tuesday (the day following panel event), RealDVD filed their appeal. Bill commented on how he hopes to convince the appellate court to allow a Microsoft declaration to come into evidence [allegedly suggesting that the DVD CCS contract is not meant to prohibit all DVD copying...potentially a smoking gun-type statement?].

As for the 'Future of the DVD', the panel painted a foreboding description of what the movie studios want, i.e., "managed DVD copies". The panel urged that managed DVD copying would be extremely detrimental to user's interests, as it would provide a mechanism for content producers to get consumers to pay again and again for the same content, each time they want to create another copy.

The event was certainly an informative, albeit one-sided (biased?) view of the current debate surrounding both rental and copying rights for DVD's. Ultimately, this debate might prove to be relatively inconsequential as the future of the DVD could be nonexistent. Physical media is likely headed the way of the dinosaur, as more and more people move towards streaming and digital downloads. The question is what will happen, in between now and then.

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