As Expected, Judge Still Bans Real From Selling RealDVD

Legal Issues

from the no-surprise dept

This will come as absolutely no surprise to folks who have followed Hollywood’s self-defeating battle against Real Network’s RealDVD offering. If you don’t recall, Real announced a product that would let users back up a DVD in their possession. Now, it’s important to understand a few basic facts: under copyright law, you are allowed to make a personal backup of something like a CD or software. That’s been found to be perfectly legal fair use. So, what’s the problem? Well, one of the worst aspects of the DMCA is that it includes a totally unnecessary (and constitutionally questionable) anti-circumvention clause. Basically, the DMCA says that if you circumvent (or offer tools to circumvent) any kind of DRM, you’ve broken the law (and here’s the ridiculous part) even if the actual copying you then do is perfectly legal. Yes, it’s like saying that breaking into your own house is illegal. It makes no sense at all.

Real tried to get around this issue in a clever way. It figured that if you really were limited only to being able to make a backup copy (rather than an unencrypted copy that could be passed around), then a court would have a hard time finding it illegal. And, in fact, it had some legal precedent on its side. Two years ago, a court found that Kaleidescape, makers of a super high-end DVD jukebox, was perfectly legal, since the device was clearly only designed to make personal backups, and couldn’t be used to distribute content.

Unfortunately, it appears that judge Marilyn Patel (who was also the judge who killed the original Napster) disagrees. She’s issued yet another injunction blocking Real from selling RealDVD, saying that it violates copyright law. Again, this isn’t a surprise. She had issued an initial injunction last year, and seemed quite skeptical of Real’s arguments earlier this years, declaring:

“They have the copyright. That’s the issue here right? They have the copyright. They have the right to exclude.”

This is only partially true. They have some rights to exclude, but those rights are limited. The question is whether or not Real’s actions fall outside that limit. But Judge Patel seems to disagree entirely with the Kaleidescape ruling, on that point.

Of course, the real issue here is how pointless a move this is for Hollywood, anyway. There are tons of DVD ripping software offerings out there — which don’t even have the limitations that RealDVD does. I can’t fathom who would buy Real’s product in the first place, knowing that there are much better, non-limiting products out there. Yet, here was a product that was doing everything it possibly could to play within the rules to make DVDs more valuable by letting people make use of their legal right to back up a DVD they had purchased, and Hollywood wants to crack down on it? The only thing that will do is drive more people to use the other versions of DVD ripping software out there. So, congrats, Hollywood, on pushing more people — people who wanted to be good, legal, customers of your DVDs — to go around the law to back up their DVDs, leaving them more open to file sharing.

It’s difficult to fathom how anyone could think this was a smart move by Hollywood, or even how this is a “victory” for Hollywood.

Filed Under: anti-circumvention, copyright, dmca, dvd copying, marilyn patel, realdvd
Companies: mpaa, realnetworks