Intellectual Property Law

RealDVD Case: Home Copying Hangs in the Balance

By David Kravets

SAN FRANCISCO -? Six days of hearings spanning a month ended here Thursday with no decision on whether RealNetworks may resume marketing its DVD copying software.

U.S. District Judge Marilyn Hall Patel is weighing the movie industry’s lawsuit against the Seattle-based company over its RealDVD software, which the judge ordered removed from the market last year pending the outcome of the case.

The lawsuit represents Hollywood?s worries that RealDVD and other fledgling DVD-copying services might ruin the market for DVDs. The U.S. courts have not squarely ruled on whether it is legal to copy an encrypted DVD for personal use.

After hours of closing arguments here, Patel did not indicate when or how she would rule. Still, Patel expressed some concern that the studios’ rights might be violated by the software, because “there’s nothing preventing you from giving your DVD to somebody else” for copying.

The studios fear losing complete control of the DVD as the music industry did with the CD. That is why it is challenging RealNetworks? $30 software allowing users to make backup copies of DVDs on their hard drives.

Hollywood claims the RealDVD software violates the Digital Millennium Copyright Act prohibiting the circumvention of encryption technology. The studios add that RealDVD breaches a contract with the DVD Copy Control Association, which licenses the CSS code to DVD players to unscramble discs.

“The DMCA makes it unlawful to traffic in devices that circument access and copy control measures,” Bart Williams, the studios’ attorney, told Patel. He said consumers have no right whatsoever to make copies of their DVDs. “When you buy the DVD you don’t buy the movie. You buy a copy of the movie,” Williams added.
For its part, RealNetworks claims a loophole in the contract with the DVD Copy Control Association. A California judge upheld the legality last year of a $10,000 high-end DVD home copying machine, made by Kaleidescape, under a claim the DVD Copy Control Association license did not require, as the studios alleged, that a DVD be in the machine to play back the movie. RealNetworks made those and other arguments throughout the case and again on Thursday.

The studios, “are wrong in their interpretation of the license,” said Don Scott, RealNetworks’ attorney.

(The Kaleidescape case, however, which is pending appeal, did not rule on whether Kaleidescape breached DMCA anti-circumvention measures. The studios allege it is preposterous to assert that copies of its DVDs are allowed. RealNetworks claims they can be made for fair use ? yet case law suggests the DMCA does not allow fair use if encryption technology is circumvented.)

Photo: MikeNeilson/Flickr

See Also:

• MPAA Pounds RealNetworks’ Glaser on Witness Stand ? Update …
• Wink Wink: RealNetworks Says Don’t Copy Rented DVDs
• DVD Copying Case Focuses on ‘Fair Use’
• Glaser: RealDVD Not For Pirates
• MPAA Claims RealNetworks ‘Destroyed’ Evidence in DVD Copying Case …
• It’s Time to Legalize Personal-Use DVD Copying

Full post as published by Threat Level on May 21, 2009 (boomark / email).