So your mum bought you a copy of Mad Max: Fury Road on Ultra HD Blu-ray for Christmas and you want to play it on your old arse non-4K TV? A line of devices from HDfury makes it possible. Or at least, it used to.
On New Year’s Eve, Warner Brothers filed a complaint against LegendSky Tech Company. LegendSky owns a company that makes a number of HDfury devices. It’s a peripheral that allows you to play HD material on non-HD devices. Unfortunately, it did that by stripping out the High-Bandwidth Digital Content Protection (“HDCP”) that media companies put on their content.
In their complaint, Warner Bros. has two causes against the HDfury device. First, that it violates the Digital Millennium Copyright Act (DMCA). Second, that it falsely advertised its product as being in some way approved by Warner Bros.
On the first count, Warner Bros. contends that a stripper — that is, a device that “strips” encryption from a data source — is a violation of the DMCA. They also point to HDfury’s own website which states, “To the letter of the law (the DMCA that is), a black box that removes the HDCP encryption to allow you to use a monitor that does not support HDCP is illegal.”
And that’s largely correct. The DMCA makes it illegal to break or circumvent any protection measure copyright holders put on their work. It also makes it a crime to sell or import any device which has a primary purpose of doing that. Anything that rips a protected DVD or Blu-Ray or breaks an encrypted stream violates the DMCA.
The DMCA doesn’t care if the purpose of breaking the encryption is legal. The only mechanism for recognising that there can be legal reasons to violate the DMCA prohibition is the triennial exemption process (which we’ve covered in depth). The exemptions allow certain people to break encryption for certain purposes. Documentary filmmakers who meet the exemptions conditions could, in theory, use the HDfury to get access to a copy of HD material for their movie.
The HDfury website goes on to say — and this part is left out of the Warner Bros. complaint: “However many civil rights advocates say [using a stripper to remove HDCP encryption in order to use a non-HDCP-supporting monitor] violates fair use rights.”
Which could be true. In 1984, the Supreme Court ruled in Sony Corp. of America v. Universal City Studios, Inc. (AKA the “Betamax case”) that using VCRs to record shows to watch later wasn’t a copyright infringement and was fair use. You could make an analogous argument that using a stripper to watch something you legally have the right to see on a monitor you also own legally is also fair use. It’s device shifting rather than time shifting. Of course, there was no DMCA in 1984.
It is really, really hard to get around the DMCA’s ant-circumvention provisions. Save an exemption, the law isn’t ambiguous. And HDfury’s website is right that this butts up hard against fair use, which allows people to use material without permission or payment for certain purposes. The DMCA makes it nearly impossible for people who have a legal right to a certain use by blocking access to the material. As always, the DMCA is a protector of companies that hold copyrights and not fair use.
What that means for the consumer is that there will never be a legal way to make your old TV play new media. If you get a new Blu-ray player but all you have is an old SD TV, guess what? You’re not buying an HDfury to make them talk to one another. You’re buying a new TV.
Top image: HDFURY IV S Advanced Kit / HDfury.com