Re: [dvd-discuss] banned software on sale in compusa

["John Zulauf" <johnzu(at)ia.nsc.com>]

"James S. Tyre" wrote:

> For a long time, the only relevant product 321 offered was DVD Copy Plus,
> which copied only to CD-R(w), and which copied only the basic movie plus
> sound, not all the extras that are claimed to further enhance the DVD
> experience.  (Personally, I've never watched, let alone copied, a DVD.) It
> was at that time when 321 filed its action, and the studios made their
> motion to dismiss on the basis of no real controversy.
> 
> But *much* more recently, 321 began offering DVD X Copy, which does copy to
> DVD-R(W), and does copy (I think) the extra stuff.  It was after that when
> the studios decided to countersue, being more afraid (apparently) of DVD X
> Copy than of DVD Copy Plus.
> 
> So, for JZ, it appears (again, I have no special knowledge) that the
> studios changed horses in mid stream only after 321 changed products mid
> case.  If that is correct then, whatever I may think of the studios or
> DMCA, it's hard to fault the studios for acting differently to the newer
> product than the older.

Actually the question is can the claims regarding to DVD Copy Plus be
eliminated from the counter suit based on the MPAA earlier filing of "no
controversy".  Can I in respond to one suit claim, "I am not bothered by
the barking of my neighbors dog" and then sue my neighbor for various
offense against me include "the barking of my neighbors dog."  I would
think I would be estopped from that.  Further, would I not have some
burden to show that my new claim is materially different from my
estopped claim?

"DVD Copy Plus" enables copying of 99.44% of the content of a DVD.  This
is certainly true in terms of the by "historical cost basis" accounting
of producing the content -- i.e. 99.44% cost to produce and promote
movie -- .56% cost to produce DVD extras.  So isn't this a suit in which

Smith (in complaint): "I want to declatory relief that my dog can bark
99 times per night without my neighbor Jones calling the police"

Jones (in reply) : "Please dismiss this claim, as Smiths dog barking 99
times per night doesn't bother us and there is thus no controversy

Jones (to news reporter): I think anyone allowing their dog to bark 99
times per night is violating the city's noise ordinance

Jones (in counter suit): We seek relief from our Smith's dog bark 100
times per night as it is a nuisance and violates the city noise
ordinance.  We ask that the dog be destroyed as a menace to the public
welfare.

It would seem a tough case to make, that 99 is not a controversy, and
100 means the dog has to be put to sleep.  Further the public statements
made between the reply and the counter suit certainly indicate that the
initial reply was not in good faith and on good belief of being true. 
One would hope that Jones would have to show a strong material change
(grandma just moved in with an unexpected illness), but the MPAA seems
to have none of that to draw on.

Thoughts?

/--3  

(Please note the super secret TPM to protect my identity, trafficking in
any code (such as email description of decoding techniques) subject to
DMCA prosecution, or am I just another copyright holder trying to play
mind games?)