MGM's Concession and the DMCRA

A passage in Timothy Armstrong's A Few Notes from the Grokster Argument made me think of a transcript of the Hearing on the Digital Media Consumers' Rights Act (DMCRA) that I read for a short article: Restriking the Balance: From DMCA to DMCRA:

Mr. STEARNS. Does the consumer have the right to make a single
copy of a DVD and a CD for his own fair use, yes or no?
Mr. LESSIG. Can I say "absolutely yes"?
[...]
Mr. VALENTI. No, he does not under the law.

(p. 45, PDF Hearing)

The exchange that followed between Lessig and Valenti is pretty entertaining. The entertainment value is only increased now that MGM has apparently exchanged Valenti's No for a Yes during the MGM v. Grokster hearing. The passage from Armstrong's report:

[MGM] said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one's own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM's side of the case who don't think that example is one bit legal. But they've now conceded the contrary in open court, so if they actually win this case they'll be barred from challenging "ripping" in the future under the doctrine of judicial estoppel.

This concession was a focal point during the hearing on the DMCRA, which seeks to reaffirm fair use for consumers and (re)establish the Betamax standard that stood at the centre of yesterdays Supreme Court hearings. The DMCRA would give consumers a "right", taken from them by the DMCA, to circumvent copy protections in order to make a fair use. That ripping a complete CD or DVD was a fair use was contested by the entertainment industry, of which Valenti represented the movie studios. If there is indeed a judicial estoppel, this argumentation against the DMCRA fair use provision would be weakened. (The entertainment industry also questioned fair use and its enforcement as such during the DMCRA hearings, a strategy to take away the focus from the direct issues presented by the proposed legislation.)

This comes just a few weeks after the reintroduction of a new version of the DMCRA (March 9th). With all the noise surrounding MGM v. Grokster this is a bill to keep an eye on, not the least because it would affirm what was contested yesterday: the Betamax standard. If the US Supreme Court steers for Congressional regulation, than there already lays some legislative groundwork. The question is if this groundwork will come to a full bill: the DMCRA 2005. A big question, even if it was strengthened by MGM's concession.

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Ernest Miller has more analysis on this "concession" by MGM.
Thru Copyfight