Kaleidescape CEO: Trial Does Have Fair-Use Implications

It seemed from the beginning that the DVD CCA's lawsuit against Kaleidescape was merely a breach-of-contract case.

Now it seems, however, that copyright issues will indeed come into play. The DVD Copy Control Association (DVD CCA), which licenses the Content Scramble System (CSS) for protecting DVDs, says Kaleidescape breached its licensing agreement by making a product that enables the unauthorized copying of DVDs onto a hard drive.

The DVD CCA's attorney Bill Coats has been quoted as saying that the case has nothing to do with digital rights.



"There won't be any fair-use issues coming up," he says. "This is just a breach-of-contract case. It's not about copyright infringement. It's very narrow and simple."

Kaleidescape CEO Michael Malcolm was inclined to agree with that assessment when the lawsuit was filed in December 2004, but his opinion has changed since reading the DVD CCA's pre-trial filings.

"The DVD CCA's most recent filings make it clear that this is a copyright case," Malcolm said in an interview with CE Pro. "Mr. Coats either has not read his client's filings or he is in a state of denial about the issue. The DVD CCA's position depends on fair use rights under the copyright law not applying to DVDs."

The plaintiff is expected to argue that Kaleidescape breached the contract by allowing "unauthorized" DVD copying. But who is to say what is authorized or not? The owner of the content? Not according to Kaleidescape, which will "make the case that the copies are authorized by the United States of America," Malcolm says. "They don't have to be authorized by the content owners."

Malcom adds, "Someone who owns a DVD has the fair-use right to load it onto his Kaleidescape system, just as the owner of a CD has the right to load it onto his iPod."

The case, which was supposed to begin Monday, will actually begin today at 9:00 a.m. Pacific Time at the Downtown Superior Court of Santa Clara in San Jose, Calif.