Twentieth-century copyright law and 21st-century technology are clashing once again, this time in a courtroom in San Francisco. The court is being asked to consider the ramifications of the Digital Millennium Copyright Act (DMCA) on the distribution of DVD copying software. In essence, the DMCA makes it illegal to provide technology that defeats copy-protection measures contained in a product. DVDs contain such protection measures to make it difficult to copy them. That is why DVD players don't work if they are connected to a TV set through a VCR.

American-based software company 321 Studios recently introduced software to the consumer market that would allow users to circumvent copy protections on DVDs. Unleashing that ability to the public prompted the Motion Picture Association of America (MPAA) to launch the action against 321 Studios on the basis that allowing consumers to copy DVDs in this matter violates the restrictions imposed by the DMCA.

Technologists argue that a narrow interpretation of the DMCA would create an extremely hostile environment for innovators, who wouldn't pursue new products for fear of legal reprisal. Entertainment industry supporters advocate a strict imposition of the DMCA to ensure their copyrights and corresponding profit margins are given full protection.

So far, the judge in the San Francisco case has indicated that she has been significantly persuaded by the entertainment industry's arguments, but has acknowledged that strict adherence to the DMCA would create the potential for the unjustified prosecution of "grey-area" copiers. These include those who would use the software to make personal backup copies of commercially produced DVDs or those who use copied DVDs for employment purposes such as writing movie reviews.

The basic conundrum about such copy protection technology and laws that make it illegal to circumvent it, is that it is absolute. It assumes all copying is illegal or undesired. In reality and at law, that is simply not the case. Copyright legislation contemplates limited copying for uses such as education, review and personal backup.

Consumers expect to be able to play music or movies on any device they may own. In consumers' eyes, they bought the content, not the media.

Canada has no equivalent legislation to the American DMCA. It affects Canadians anyway, as we use the same products.

Canada is, however, contemplating whether to enact similar legislation. It is likely Canadian legislators will take their cues from the U.S experience, and it can be hoped they will try for a better balancing act.

The call for strict prevention measures is understandable in light of mass-volume DVD copying by illegal black-market rings, as occurs in most Asian markets. However, individual personal DVD copying and small-scale fair-use copying represents an entirely different category.

Canadians can hope for two things. First, that the U.S. courts or legislature soften the strict approach. Second, if our legislators enact new legislation it will prevent blatant criminal attacks on the profits of the entertainment industry, but stop short of prosecuting those whose copying activity falls within accepted fair dealing and has no effect on the entertainment industry's bottom line.