Intellectual Property Law

While urging a federal judge not to pull the plug on its DVD-copying software, RealNetworks told a federal judge there's no harm to the movie studios because consumers are only supposed to reproduce their personal movies, not rented ones.

The argument was taking a page right out of head shops that warn consumers that the colorful glass bongs and pipes on display are for tobacco use, not "illegal substances." 

RealNetworks' made the statement at the tail end of a three-hour federal court hearing Tuesday to U.S. District Judge Marilyn Hall Patel. She was hearing last-ditch arguments on why she should not bar the sale of RealNetworks' $30 DVD copying software.

James DiBoise, the attorney for RealNetworks, said the software wasn't harming the movie studios. RealDVD won't cut down on DVD sales because it's supposed to be used to copy DVDs which a movie fan already owns, not those that were rented, DiBoise said.

If a customer has a rented DVD, "they should press play" and not the record button, DiBoise told Patel in a San Francisco courtroom. RealNetworks' website basically says the same thing.

Still, DiBoise's statement was akin to the disclaimers on display cases at head shops. After all, glass pipes and bongs are for tobacco. And nobody would dare copy a rented DVD.

His argument made no difference to Judge Patel, who had presided over the original Napster trial. She ordered the software discontinued until she could fully understand its technology. A new hearing date was not immediately set.

Patel said she believed the software violated the Digital Millennium Copyright Act because it allowed users to circumvent encryption technology designed to prevent copying of DVDs, regardless of whether they were rented or owned.

Bart Williams, the Motion Picture Association of America's lawyer, responded to DiBoise's assertion that the MPAA should quantify whether RealDVD has eaten into DVD sales. Only if a drop in sales is proven should an injunction be granted, DiBoise said.

Williams' reply, however, underscored the Netherworldliness behind the financial figures the studios tout (.pdf) as being lost to piracy -- $6 billion a year. We reported Friday about made-up numbers on the amount of jobs lost to intellectual piracy.

Williams told Patel that the MPAA has no way of knowing how many DVDs have been copied by the purchasers of the 3,000 RealDVD units sold last week before Patel barred their sale.

"There's no way to quantify how many DVDs they've copied," Williams said.

Perhaps statisticians on "illegal substances" generated the $6 billion figure -- $1.4 billion of which was affixed to "illegal copying".