A Californian startup is taking on the might of the motion picture industry and challenging the constitutionality of the Digital Millennium Copyright Act (DMCA) in an attempt to flog its DVD copying software.

321 Studios yesterday filed a complaint in a Californian US district court against nine major film production companies, including MGM, Tristar, Columbia, Sony, Universal and Disney, over industry threats to stop the sale of the company's DVD Copy Plus software.

Citing free speech rights under the First Amendment, the complaint asks the court to rule that the sale of the software does not violate key provisions of the DMCA nor unlawfully aid consumers in infringing copyright.

321 is seeking a declaratory judgement that will allow it to continue to sell DVD Copy Plus. No damages are sought.

The company alleges in the suit that the movie studios, acting in part under the auspices of the Motion Picture Association of America, have threatened to sue, claiming that the sale of DVD Copy Plus is illegal under the DMCA.

The Act prohibits the creation of a technology that can crack copy protection, and first hit the headlines in 1999 when Norwegian coder Jon Johansen released DeCSS, a tool which allowed DVDs to be copied.

Johansen, who is currently awaiting trial in Norway, has always maintained that DeCSS was created to allow DVDs to play on Linux machines.

However, in November 2001 a court of appeal ruling in the US overturned the controversial injunction against publication of the DeCSS source code, saying that the code was protected under the First Amendment.

Daralyn J. Durie, a partner with law firm Keker & Van Nest, which is representing 321 Studios in the case, said: "We believe that there are substantial constitutional problems with the DMCA, not least of which is barring consumers from exercising their right to make backup copies of DVDs they own.

"This is one of the first cases asking the court to rule on the crucial question of how this law impacts on those rights."

321 claims that because DVDs are "notoriously susceptible to scratches, heat damage, loss and other problems" it is reasonable that users should be allowed to make legitimate backup copies for their own use.

Robert Moore, president of 321 Studios, said: "In our mind, this is no different from making an extra personal copy of a music CD, which is perfectly legal.

"We decided to proactively file this lawsuit not only to receive the court's assurance that we are in compliance with the law, but to raise the broader question of how Americans' First Amendment rights can be protected in this digital age."