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DVD-copying upstart battles Hollywood

321 Studios is asking a judge to block movie studios' attempts to stop it from shipping its DVD-copying products, claiming its software is protected free speech.

321 Studios is asking a judge to block Hollywood's attempts to stop it from shipping its DVD-copying products, claiming its software is protected free speech.

The company has been sued by seven major movie studios, which claim 321's DVD X Copy and DVD Copy Plus programs are helping to promote movie piracy. The studios claim the company is violating the Digital Millennium Copyright Act (DMCA) by selling software that can bypass protections on DVDs to make near-perfect copies.

However, in its latest filing, 321 argued that its products are protected free speech and that the studios are violating the First Amendment by trying to quash them. The company said the software is designed to allow people to make backups of DVDs they already own.

"The documentation presented to the court in 321 Studios' recent filing illustrates that the position taken by the major movie studios and the legislation behind which they hide--the DMCA--is unconstitutional," Daralyn Durie, an attorney with Keker & Van Nest who's representing 321, said in a statement.

The studios' attempt to block 321 "violates the First Amendment rights of third parties who want to engage in protected expression using software and violates the rights of 321 Studios by prohibiting the sale of their DVD backup products, which are considered speech and are therefore guaranteed protection under Free Speech rights," Durie continued.

The company also claims its products do not circumvent copy controls, an action prohibited by the DMCA.

321's legal saga started last April, when the company asked a judge to declare its family of DVD-copying products legal because, 321 argued, they're intended to allow people to make backup copies of DVDs they already own. The company filed the request after reading newspaper articles quoting a Motion Picture Association of America representative, who suggested software such as 321's violated criminal copyright laws.

It wasn't until 321 released DVD X Copy, the most advanced of its copying products, that the studios filed suit seeking to stop shipments of the software. The first major courtroom hearing on the matter is scheduled for April 25.

321's argument that software is protected free expression has been tried with varying degrees of success over the years. In the first major DMCA case, which pitted studios against a publication that posted and linked to software that could crack DVD copy protections, the judge specifically ruled the software isn't protected free speech. However, in another case in California, a federal appeals court said that it is, allowing professor Daniel Bernstein to post encryption software the National Security Agency had claimed was illegal.