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August 12, 2009

Plus Ça Change [10:54 am]


Judge rules against RealNetworks DVD copy software
(pdf)

Walt Disney Co., Sony Corp. and Universal Studios, among others, filed suit against Seattle-based RealNetworks in 2008, saying its RealDVD device is an illegal pirating tool. The Hollywood studios contend that RealDVD would keep consumers from paying retail for movies on DVD that could be rented cheaply, copied and returned.

RealNetworks has said its product legally meets growing consumer demand to convert their DVDs to digital form for convenient storage and viewing. RealNetworks lawyers have argued that RealDVD is equipped with piracy protections that limit a DVD owner to making a single copy. They also said the device provides consumers with a legitimate way to back up copies of movies legally purchased.

On Tuesday, U.S. District Court Judge Marilyn Hall Patel ruled in favor of the movie studios in granting a preliminary injunction against RealDVD, declaring that the technology would allow consumers renting and buying DVDs to violate copyright laws.

In a 58-page document, Patel said RealNetworks failed to show that the RealDVD products are to be used by consumers primarily for legitimate purposes.

Basically, it’s game over when we get to the language on page 25 of the ruling:

92. Plaintiff must then show that Real’s RealDVD products are either: (a) primarily designed or produced for the purpose of circumventing technological measures that effectively controls access to a copyrighted work; (b) have only a limited commercially significant purpose or use other than to circumvent such technological measures; or (c) marketed for use in circumventing such technological measures. 17 U.S.C. § 1201(a)(2). These are disjunctive clauses. The court need look no further than the first enumerated condition to find that the Studios are likely to prevail on the section 1201(a)(2) claim. [...]

There you go: “the law says this dumb thing, and this case clearly falls into that domain, so I’m done now.” This *is* one of the things we pay judges to do, actually — interpret the statute and apply the law. And, since judges generally prefer NOT to decide anything, it’s always nice to find statutory language that gives clear guidelines.

But, it also means that we have to wait until a judge is willing to say, “the law says this, which is clearly a) wrong, b) fallacious, c) unconstitutional, d) inconsistent with some other law/principle, or etc., and therefore hewing to the terms of the statute is incorrect/wrong.” This, of course, is more work and, according to some, constitutes “judicial activism” — except, that’s also what we expect judges to take on.

Judge Patel, of course, is issuing an injunction, not actually deciding the case. She may decide to consider the larger issues when the trial occurs, or she may not.

[Aside:] This bit struck me as the funniest bit in the order:

100. Real’s argument that RealDVD does not “remove” the layers of CSS protection, including drive-locking, authentication or bus decryption, because those CSS requirements have been fulfilled by RealDVD when it first obtains DVD content from a DVD and are not needed thereafter from a DVD amounts to legal legerdemain. [...]

I would have thought that “legal legerdemain” is what almost all of the domain of legislated rights would be about!

And the most horrifying part of the order starts on page 30, where we learn about ARccOS and RipGuard, technologies embedded in DVDs to create errors in the datastream — corrupting the data to make copying difficult. That’s bad enough, but Judge Patel elects to interpret the engineering design of RealDVD as intentional circumvention when it is also a way to correct for errors in the data stream. Her contention that the rarity of these errors in the normal course of DVD production means that any software designed to correct for these errors must clearly be designed to circumvent these copy protection schemes is judicial intervention into engineering design rationales — truly far afield from her training!

On the other hand, the Judge at least recognizes the hazards, even if she decides that she’s not going to do anything about it — yet:

There is always a struggle between pleasing copyright holders and copyright users. The DMCA represents Congress’ attempt at a balance to preserve ownership rights protection for companies and artists in the face of the modern reality of a digital world with an increasingly technologically-savvy population. In some circumstances, the law can choose to value the right of public access to unavailable copyrighted works more heavily than the property rights of the owners of those works. However, the reach of the DMCA is vast and it does not allow courts the discretion to make this assessment and render a value judgment untethered from the language of the statute. [...] The court is bound by the DMCA provisions at issue, even if it determines the extent to which innovative technologies realize their future potential. (p. 41)

The EFF site, with more materials on the case — RealNetworks v. DVD-CCA (RealDVD case)

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