Misunderstood Movie Download Add-On
When Warner Brothers backed Wal-Mart’s plan to offer movie downloads along with a DVD, the L.A. Times’ Jon Healy called it a not so super development. The gist of his disdain was that if you can rip a CD for free, why should you be charged extra for a DVD with a license to download a second copy? The Electronic Frontier Foundation’s Fred von Lohmann piled on, accusing Hollywood of stealing fair use and selling it back to you. I have the utmost respect for both gentlemen, but on this one I have a different point of view.
There is a popular misconception that anything you can legally do with music on your CDs, you are also entitled to do with movies on your DVDs. The argument is that if ripping songs to your portable player is fair use, then ripping movies is fair use as well. I’ve never been convinced.
First, the legitimacy of most copying of CD music to portable players has nothing to do with fair use. The non-commercial ripping of CDs to portable players enjoys specific protection under Section 1008 of the Copyright Act (which provides that copyright owners cannot sue for certain “non-commercial” infringement of the reproduction right in sound recordings). This legal structure compensates copyright owners (even if imperfectly) for the resulting proliferation of uncompensated copies by charging the manufacturers of blank media and recording devices a royalty, which is then passed on to copyright owners. No such protection from prosecution or system of compensation exists for books, movies, video games or anything else, other than music.
Second, the fair use analysis applied to ripping CDs does not square with economics of ripping DVDs. One who purchases a CD typically wants to listen to it more than once, and wants to listen to it in multiple locations. The practice of ripping began when people wanted to listen to their vinyl LP on their cassette player in the car. Copying to the playback medium in the car was the only practical solution, but the owner of the LP typically kept it for playback on the turntable at home. I have a number of CDs that I regularly listen to at home or in the car equipped with a CD player, but I also rip them to my laptop to listen to in my office, and to my portable player to listen to while working out or in my car that has no CD player. Though I make copies to expand my freedom to listen to music wherever I like, I place no additional copies into commercial circulation.
The typical movie, in contrast, is watched once. If I buy a DVD, I may sell it, lend it or give it away after watching it unless I want to keep it in my library to enjoy a few months or years down the road. DVD rental is an option not available for CDs, and the over $6 billion per year consumers spend renting movies suggests that they are happy to obtain possession of the DVD just long enough to watch it, and then return it to the owner so someone else can rent it. If I rent a DVD for a day and make a copy to keep forever before returning it, I am interfering with the economics of gaining temporary possession of, but not owning, a single DVD. A video retailer may rent me a DVD for $3 or sell it to me for $18. As a consumer, I have a choice: I can own it for $18 (and then keep it, sell, it, rent it, lend it or give it away), or for only $3 I can possess it for a short period of time, treat it as I would property that does not belong to me, and then return it to its owner within the agreed time. Ripping the DVD before passing it on is more likely to impact sales and rentals.
Third, this is not so-called “space-shifting”. The original space-shifting bill introduced by Congressman Rick Boucher several years ago would have authorized the simultaneous deletion of the first copy once the work was transferred to another medium. Copyright case law in the United State and Canada has long recognized that taking the copyrighted work off of one medium and placing it on another does not infringe the reproduction right of the author because, at the end of the process, no additional copies exist. That is true “shifting” of the work from one space to another. But indiscriminate ripping shifts nothing. Instead, a second copy is made on a new medium, leaving the original copy intact.
While there may well be situations in which copying a DVD might constitute fair use, routine ripping just to own more copies in more formats does not. There is no legal mechanism to protect me from infringement lawsuits, there is no compensation system for the copyright owner’s loss of control over such copying, and I can’t argue with a straight face that I just want to be able to watch my DVD of An Inconvenient Truth over and over, from my portable player while jogging, in my car while driving, from my computer while working, and then flip on my DVD player to watch it again while I’m cooking dinner. Pretty much the only reason I would have for ripping a DVD would be to avoid late fees on a rental of a movie I have not yet watched, or to gain the benefits of selling or giving away my DVD while not paying the “cost” of giving up my copy.
This brings us to the Warner/Wal-Mart deal. In proper perspective, it is terrific. Like buying one pizza at regular price and getting a second one at half price, you can eat the second pizza right away, place it in your freezer, or invite someone else to have the second one if all you personally needed was one pizza. No one has a “fair use” right to buy or rent a DVD and rip a copy to keep forever while returning the original DVD to the video store, giving it away or selling it on eBay. Sure, you can legally give away or sell a used DVD, but the copy you kept is the infringing one.
I once asked Tower Records why, back when consumers were ripping CDs to cassettes for their cars, they didn’t think to offer a CD/cassette bundle at a fraction of the cost of buying them separately. “We wanted to,” I was told, “but the labels would not give us the price break we needed. They were afraid people would buy the package and give one to a friend instead of keeping them both.” Warner is to be applauded for its courage to offer such a price break that allows retailers – hopefully any retailer who wants to – to pass such an offer on to consumers, thereby expanding the number of value propositions through which to choose non-infringing copies. Sure, there may be consumers out there who will watch the download and sell the DVD on eBay or give it to a friend, but when my pizza parlor offers the second pie at one half off, it is also persuading me to order pizza instead of Chinese food. It is adding value to the purchase of the first pizza. The Warner/Wal-Mart offer allows you to get two perfectly legal copies for less than the price of buying the two separately and, as a result, you may just walk out of the store with a movie instead of the unbroken $20 bill with which you walked in.