BRLawyer said:
In fact, fair use has NOTHING to do with a "consortium" of companies, or what they "allow" you to do...fair use is a statutory right that does not differentiate between CDs or DVDs, and is predicted under hard laws, not the private will of a select few...if fair use tells you it's OK to make a private copy, you can do it regardless of being CD, DVD or cassette; and this is where fair use and DRM collide most.
Fair use is not a statutory right, it's not a right at all. Fair use is a defense. And it's only a defense against copyright infringment. It's also wooly, few people realise that outside of a few areas where copyright directly impedes free speech (for example, parody of a copyrighted object requires copyright infringement as a part of it), the defenses it gives you can be extremely minimal even comparing to what appear, at first glance, to be similar situations.
The DMCA includes provisions against circumventing an "Access Control Mechanism". This is not bypassable by claiming "Fair use", as it's not copying, merely a legal mechanism to back-up the enforcement of copyrights. If Apple doesn't have permission from the DVD-CCA, they cannot produce something that allows users to make use of DVD content protected by CSS (which is an ACM.) Period. There's no fair use case at all. It's just not legal. Fair use doesn't apply because it's not copying we're talking about here, it's an entirely seperate system.
HD DVD and BluRay will apparently incorporate mechanisms to allow a limited system of copying from the source media to a computer system, but both are restricted. In HD DVD's case, the copyright holder can actually charge you for using the system (and charge you whatever they want.) In BluRay's case, the system is "optional", copyright holders being able to prevent it from occuring altogether (this isn't a big deal, as HD DVD producers can set the price to a million dollars per copy anyway.) No such mechanism exists for exploitation in regular DVD, and there probably never will be simply because of the time and effort it would entail getting permission from all the relevent parties to allow it to happen.
In any case, the bottom line is that in this case, the consortium of companies can tell you exactly what a manufacturer like Apple can do with DVD content. Any content that's encapsulated by CSS (and most is) can only be accessed under the terms and conditions set by the DVD-CCA. That's the law. No fair use defense applies. This isn't about copying, it's about Apple only having permission to produce tools that access that content with the consent of the DVD-CCA, under the terms that the DVD-CCA claims.
Keep in mind that this is under the assumption that you won't illegally share this content over BitTorrent or some other method. Programs like Handbrake and MactheRipper exist for "fair use" purposes only. Please don't steal copyrighted content.
