OPINION: Does HDCP violate fair use?

In the mid 2000s when customers craved digital connections everyone looked to HDMI. The easy-to-use connector seemed like the perfect choice for the upcoming high definition revolution. There was only one problem: The cables could be used to create perfect HD digital copies. This terrified broadcasters who imagined an open market for pirates and swindlers determined to deprive honest content creators from a decent day’s wage.

In order to mollify the broadcast studios, copy protection was built into every HDMI cable. It’s not just the content protection (HDCP) that can be used to encrypt video streams into an as-yet-unbreakable form. From the very beginning HDMI was designed around the idea that some devices are “source” devices” and others are “target” devices. The full HD stream can only be fully decoded on a “target” device, meaning that it’s technically impossible to have a recording device that takes HDMI in without a lot of licensing costs. (Since the standard came into being, a third type of device, the “passthrough,” has become popular; these are HDMI switchers and AV receivers that pass the HDMI signal but do not fully decode it.)

The question here, though, is, do HDCP and the other protections in HDMI cables violate the principle of “fair use?” Copyright law has always held that some copying is allowed as long as the copy is for your exclusive use and not for profit. That’s why, as a kid you might have recorded songs off the radio and it’s also why you have the right to record to your DVR. There’s a difference between recording off the radio and recording to a DVR though… if you recorded a song off the radio not only could you put that cassette tape on a shelf but you could re-copy it legally as long as you weren’t making multiple copies to sell. (In other words, don’t worry about that mix tape you made your 10th-grade girlfriend, the feds are just fine with it.)

A DVR is a different matter. You probably don’t even own your DVR, not if you got it from your satellite or cable company, and it’s pretty hard to get content off it if you want to keep it permanently. Use an HD capture device if you can, but they’re expensive. Problem is, more and more devices have only HDMI outputs — Blu-ray disc players long ago stopped offering analog HD outputs as part of an agreement with studios. Most DVRs still have component outputs but who knows about the next generation?

We don’t have any lawyers here on staff at The Solid Signal Blog but common sense says that if you have the right to copy something for your exclusive use, then you should be able to copy the stuff off your DVR and keep it permanently. If you break the law by redistributing it, then you should be prosecuted but you shouldn’t be punished because of what you “might” do. Content creators don’t have more rights than you do and to us at least, it doesn’t seem fair.

We also think the best way to make sure that the world isn’t flooded with cheap, high quality digital copies is for content creators to offer their products at a fair price. It costs $50 to go to a movie for two people now, $25 to buy a digital movie and $9.99 for some pay-per-view content. Most of that money goes straight into content creators’ pockets. Find a way to offer shows for permanent purchase for $2.00 and offer movies for $4 in digital form. Why would anyone bother pirating if the price was fair?

About the Author

Stuart Sweet
Stuart Sweet is the editor-in-chief of The Solid Signal Blog and a "master plumber" at Signal Group, LLC. He is the author of over 8,000 articles and longform tutorials including many posted here. Reach him by clicking on "Contact the Editor" at the bottom of this page.