Europe’s new copyright laws, already part of British law, make it an offence to sell devices that circumvent copy protection technology. But Rob Semaan, head of 321 Studios, thinks there may be a legal way around it, depending on how the word "effective" is interpreted.

321 Studios sells XCopy that allows users make perfect copies of protected DVDs.

On his web page, Seaman says, "321 Studios believes that consumers who copy DVDs for their personal use are exercising their right of ‘fair use’ – an exception to copyright law that has been upheld by the U.S. Supreme Court in order to avoid an irreconcilable conflict between copyright law and the First Amendment?s guarantee of free speech.

"321 Studios maintains that backup privileges should apply equally to all media, whether copying a DVD, a VHS tape, an audio CD, or a CD-ROM. 321 Studios and its products serve as the bridge between copyright laws and the general consumer?s rights under the fair use doctrine."

However, "321 Studios is waging an ongoing legal battle in the US with the major movie studios, who say XCopy contravenes the Digital Millennium Copyright Act and assists piracy," says a New Scientist report here, going on that Warner Home Video is also suing 321 in the UK The ECD is now coming into force across Europe.

The UK court case will be heard sometime in 2004 and Semaan thinks one clause gives him a good line of defence, reports Barry Fox. "I like section 296", he told New Scientist.

"It says it is only an offence to ‘circumvent technological protection measures’ if the measures are ‘effective’. But DVD protection isn’t effective because it doesn’t work."

XCopy makes perfect digital copies of DVDs by defeating CSS and CGMS meant to stop analogue copying, not to speak of Macrovision system, designed to enhance analogue protection.

"CSS is a total failure," New Scientist quotes Semaan as saying. "Macrovision is a failure too. They don’t work. The unlocking keys are freely available on the internet. A school kid cracked them."

However, industry bodies in Europe reject Semaan’s claim, says New Scientist: "If their defence is that CSS is not an effective technological measure, it is bound to fail," says Lavinia Carey, chair of the UK-based Alliance Against Counterfeiting and Piracy.

"A technological measure is ‘effective’ if the use of the work is controlled by the copyright owner through a process which achieves the intended protection," she says. "This does not mean that only un-hackable measures are protected. All it requires is that in normal operation the protection measure works – which it obviously does, or 321 would have no market."

But, "The courts might well have some sympathy with 321’s argument that protection is not effective if a schoolboy can defeat it," New Scientist has Alistair Kelman, a barrister and computer expert with 25 years experience of copyright disputes, as saying.

"Getting the courts to hold up the case against copying is not a done deal," he says. He notes the difference between home users making copies, and hardened criminal pirates: "There has to be a line somewhere."

Any legal case against home users "walks straight into areas like the European Convention on Human Rights, Freedom of Speech and Freedom of Information", he believes.

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