Make a Backup Copy in Your Own Home: Allowed Only in France
A Patently-O reader has graciously (and anonymously) translated the ground-breaking French case of Monsieur Stephane P v. Universal Pictures Video France (Court d’Appeal de Paris 2005). In that case, the French court of appeals ordered Universal to remove "Mulholland Drive" from store shelves because it included anti-piracy software -- a violation of the French right to privacy.
Mr. P purchased a DVD of “Mulholland Drive” wanted to play it at his mother’s house. Unfortunately, his mother only owned a VHS player. Because of anti-piracy software on the DVD, Mr. P was unable to transfer the video to the VHS format. He brought his case to the French consumer union (UFC) who then brought suit against Universal Pictures and Studio Canal. UFC’s complaint relied upon the French Intellectual Property Code that guarantees the rights of consumers “to make a private copy” (Article L.122–5) and obligates vendors to inform consumers of essential characteristics of goods (Article L.111–1).
The Appellate Court agreed that Mr. P’s rights had been violated, finding that the anti-privacy locking mechanism was a breach of the exception for private copy and that Universal had failed to provide sufficient information about the mechanism, which is an essential characteristic of the product.
As a remedy, the Parisian court ordered that the companies cease from using technical protection means incompatible with the exception for private copy and to pay damages.
Interestingly, in the U.S., the DC Circuit Court of Appeals recently upheld privacy rights in a somewhat similar case. In American Library Association v. FCC (D.C. Cir. 2005), the appellate court shot down the "broadcast flag" rules proposed by the FCC that would prevent copying of HDTV broadcasts. In that case, the court found that the FCC had exceeded the scope of its authority.
In this case, all relevant materials concerning the FCC’s jurisdiction – including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and Commission practice – confirm that the FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission.
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