I'm not familiar with exactly what BackupHDDVD does. My understanding is that you must input keys and then it will decrypt the encrypted content. If this is the case, than according to the language of the DMCA it does sound like it is infringing. Section 1201(a) says that it is an infringement to "circumvent a technological measure." The phrase, "circumvent a technological measure" is defined as "descramb(ling) a scrambled work or decrypt(ing) an encrypted work, ... without the authority of the copyright owner." If BackupHDDVD does in fact decrypt encrypted content than per the DMCA it needs a license to do that.
I see the argument that the distribution of BackupHDDVD is only the source code so it can't be infringing. This isn't true. Under general copyright principles the source code is the most important part anyway, but more specifically the DMCA states that it is a violation to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or
part thereof that "is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure." It seems that even a useless portion of the source code could be infringing if you could determine that it is "part" of an infringing program.
I see the argument that Fair Use allows backups of DVDs and HD-DVDs/Blu-ray discs and therefore this type of decryption cannot be prohibited by the DMCA. This is a tough pill to swallow...I am sorry. But Fair Use does not allow personal backups in the United States (and it seems this DMCA take down notice is referencing US law.) There is no authority that has ever supported a Fair Use argument to backup DVDs and the Copyright Office has actually made its own ruling on this issue on three separate occasions, based on motions filed by consumers and consumer organizations. The jist of their ruling was that there is no existing authority for the argument, that the validity of any such argument would be viewed with skepticism, and that if such an exemption is ever created it will need to be implemented by Congress, just as was done with computer software and musical recordings (which can be backed up per specific statutes unrelated to Fair Use.)
Here is the exact language of the Copyright Register in their ruling. Please don't shoot the messenger. This is the only real authority on this issue in the US and it creates a very steep slope to overcome to win this issue on Fair Use grounds.
Quote:
The proponents of this exemption desire to make backup copies of their DVDs for a variety of purposes: they claim that DVDs are inherently fragile and subject to damage; they are concerned about loss or theft of the original during travel; they wish to duplicate collections to avoid the burdens and risks of transporting DVDs; they assert that some titles are out of print and cannot be replaced in case of damage; and they claim that the duration of a DVD’s lifespan is limited.
The common denominator in all of the comments endorsing an exemption for DVDs appears to be the need to make backups of the original copy due to the alleged fragility of the medium. The question therefore becomes whether making a backup copy of a DVD is a noninfringing use.
The creation of a backup copy of a work implicates the reproduction right. While the Copyright Act contains an exception for the making of backup copies of computer programs in §117, it contains no comparable exemption for motion pictures and other audiovisual works. The proponents of an exemption bear the burden of proving that their intended use is a noninfringing one. No proponent has offered a fair use analysis or supporting authority which would allow the Register to consider such a basis for the exemption, and the Register is skeptical of the merits of such an argument.
DVDs, of course, are not indestructible. Neither were traditional phonograph records; nor are CDs, videotapes, paperback books, or any other medium in which copyrighted works may be distributed. The Register is not persuaded that proponents of this exemption have shown that DVDs are so susceptible to damage and deterioration that a convincing case could be made that the practice of making preventive backup copies of audiovisual works on DVDs should be noninfringing.
The proposed exemption is not simply to permit remedial measures for disks which become damaged, but rather to allow reproduction of the works as a precautionary measure. While an analogy might be made to the basis for the backup exemption for computer programs that was enacted in the days of corruptible floppy diskettes, there are important differences. Congress carefully addressed the §117 exemption for backups of computer programs with restrictive conditions. One day Congress may choose to consider a carefully tailored exception for backing up motion pictures if it is persuaded that one is necessary, but the Register sees no authority under current law that would justify an exemption to enable the making of backup copies of motion pictures on DVDs. Given the tremendous commercial appeal of the DVD format at a time when alternative analog formats still exist, it seems unlikely that now is the time. And while it may well be true that analog formats are headed for ultimate extinction, the market is already beginning to see evidence of alternative forms of digital delivery over the Internet. The decision to purchase a DVD format entails advantages and, perhaps, disadvantages for some. The purchase of a work in that particular format is not, at present, a necessity and DVDs are unlikely to become the only format in which motion pictures may be purchased. The record in this rulemaking does not establish that the potential for possible future harm to individual disks outweighs the potential harm to the market for or value of these works that would result if an exemption were granted. The unauthorized reproduction of DVDs is already a critical problem facing the motion picture industry. Creating an exemption to satisfy the concern that a DVD may become damaged would sanction widespread circumvention to facilitate reproduction for works that are currently functioning properly. As presented in this rulemaking, the exemption would be based on speculation of future failure. Even though certain copies of DVDs may be damaged, given the ready availability of replacements in the market at reasonable costs, on balance, an exemption is not warranted on the current record.
The opponents have provided strong evidence of the increasing popularity of the DVD format. The Register finds it difficult to imagine that a format that is fundamentally flawed would become so popular. Similarly, it is difficult to imagine how a business model of renting DVDs, which also appears to be thriving, could be viable if the medium were so fragile. Further, it is significant that the scope of the problem the proponents describe is limited to movies on DVDs and does not address other types of works which commonly employ DVDs, such as video games. All these facts lead to the conclusion that, on the current record, DVDs are not unusually subject to damage in the ordinary course of their use. To the extent that some commenters found it more convenient to travel with backups or keep backups of their works in multiple locations, e.g., vacation homes or cars, the prevention of such uses appears to represent an inconvenience rather than an adverse effect on noninfringing uses. Indeed, the Register is aware of no authority that such uses are noninfringing. To endorse such uses as noninfringing would be tantamount to sanctioning reproductions of all works in every physical location where a user would like to use the work, e.g., the purchase of one book would entitle the user to reproduce copies for multiple locations. Except where a case-by-case analysis reveals such reproduction to be noninfringing under §107 or some other specific exemption, such reproductions of convenience are infringing under the Copyright Act. Neither the fear of malfunction or damage nor the conveniences enabled by backups satisfy the requirement that the intended use be a noninfringing one.
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