Hollywood And RealNetworks Head To Court Over DVD Ripping

from the fun-to-watch dept

Tue, Sep 30th 2008 3:48pm — Mike Masnick

As was widely expected when RealNetworks announced plans to release some DVD ripping software, the lawsuits are now flying. RealNetworks rushed to court to ask for a declaratory judgment, though the MPAA admitted it had its own lawsuit ready to go as well. Real getting to the courthouse faster may mean slightly more favorable jurisdiction for the company. In the meantime, it seems like the MPAA is facing a huge uphill battle here, as Real's software includes its own DRM, so it's hardly a case of allowing widespread copying. Plus, making personal backups is allowed under copyright law. The real issue is where two conflicting parts of the law collide: the right to make personal backups and the DMCA's prohibition on circumventing DRM. Real claims that since it adds its own layer of DRM, the studios' DRM is not circumvented. That may make the most sense from the standpoint of the lawsuit, but it still seems like a strong case could be made by simply focusing on how people have a right to make personal backups. Of course, this lawsuit is something of a marketing stunt. There are better DVD rippers out there that are available for free, so it's difficult to see Real ever getting very far with this product, no matter what happens with the lawsuit.

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Filed Under: anti-circumvention, dmca, dvd ripping
Companies: 321 studios, mpaa, realnetworks

30 Comments

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PRMan, 30 Sep 2008 @ 4:28pm

Is it wrong...
Is it wrong to root for serious injuries, without a care as to who wins?
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Buzz, 30 Sep 2008 @ 4:59pm

Hmmm
I recall doing a presentation on the DMCA a few years ago. If remember correctly, DMCA is never allowed to overrule copyright laws. It'll be interesting to see how this plays out. When there is a collision, copyright laws SHOULD prevail; the DMCA was never given the power the squash other existing laws.
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Anonymous Coward, 30 Sep 2008 @ 5:02pm

Perhaps I misunderstand the pertinent portion of the above article, but I am unaware of any provision in US Copyright Law that authorizes archival copies of digital files other that computer programs.
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Ima Fish, 30 Sep 2008 @ 5:07pm

This would have been an interesting story about 8 years ago when such a program would been daring and relevant.
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Nick Stamoulis, 30 Sep 2008 @ 5:13pm

I'm hoping Hollywood wins simply because the blood, sweat and tears put into the work of these films and productions gives no right for someone to simply rip as many of these films as they please.
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Mike (profile), 30 Sep 2008 @ 5:36pm

Re:
I'm hoping Hollywood wins simply because the blood, sweat and tears put into the work of these films and productions gives no right for someone to simply rip as many of these films as they please.

Then you are rooting for one side based on ignorance.

The program in question does not allow someone to rip as many copies as they please.

Second, if you've bought something, why shouldn't you be allowed to make a backup copy of it for personal use?

So, why should the blood, sweat and tears that was put into earning the money that was spent on a DVD not lead to actual ownership of the content purchased?
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Mike (profile), 30 Sep 2008 @ 5:52pm

Re:
Perhaps I misunderstand the pertinent portion of the above article, but I am unaware of any provision in US Copyright Law that authorizes archival copies of digital files other that computer programs.

Can you explain how a movie (a bunch of bits) is different from a software program (a bunch of bits)?

The law is quite clear that archival copies of a bunch of bits is perfectly legal. Archival copies of software (a bunch of bits) is explicitly legal. Time shifting and place shifting of content has also been ruled quite legal.

It would take a really twisted legal mind to then claim that movies (also a bunch of bits) are illegal to copy for archival or time shifting purposes.

So, the only way you could claim that it's not legal to make a archival or backup copy of a movie is if you honestly believe that there's an inherent difference in the bunch of bits that represent a software program and the bunch of bits that represent a movie. And I think you'll find it quite difficult to make a compelling argument that one batch of bits is different than the other.
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lulu, 30 Sep 2008 @ 6:10pm

Re:
I pay for my content - including digital music and DVDs, and after I own it, I'm not going to post it online to a file sharing site, but it is my right as a consumer to control that content once I pay for it.
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Anonymous Coward, 30 Sep 2008 @ 6:22pm

Re: Re:
"Plus, making personal backups is allowed under copyright law."

I know you are not an attorney, but it does seem you have a strong belief in what I have quoted above. The problem is, your arguments notwithstanding, the only section of The Copyright Act that speaks to archival copying by individuals involves computer programs. See: 17 USC 117.

Bills have been introduced to expand archiving beyond just computer programs, but none of them appear to have gained any traction within Congress.
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Mike (profile), 30 Sep 2008 @ 6:37pm

Re: Re: Re:
I know you are not an attorney, but it does seem you have a strong belief in what I have quoted above. The problem is, your arguments notwithstanding, the only section of The Copyright Act that speaks to archival copying by individuals involves computer programs. See: 17 USC 117.

You must have missed my earlier comment.

Again, please explain in any meaningful way how one bag of bits is different from the other.

Hell, if you want to get technical about it, and require an executable, then you could basically wrap a piece of content in an executable and then copy that. In fact, that's what Real is doing here.
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Anonymous Coward, 30 Sep 2008 @ 6:55pm

"...if you want to get technical about it, and require an executable..."

I am not "requiring" anything, but merely noting that the declarative statement made in the article is limited to computer programs. Should the law be broader? Perhaps, but what the law "should" say does not trump what it "does" say.
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Mike (profile), 30 Sep 2008 @ 7:07pm

Re:
I am not "requiring" anything, but merely noting that the declarative statement made in the article is limited to computer programs. Should the law be broader? Perhaps, but what the law "should" say does not trump what it "does" say.

I am noting, again, that you refuse to explain how one bag of bits is different than the other.

A movie IS a software program. It's a bag of bits.
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Richard, 30 Sep 2008 @ 7:23pm

What do you mean it allows user to rip as many copies as they want. Maybe some commenters need to do there homework before spreading mis-information. Not that I want the software either.
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Anonymous Coward, 30 Sep 2008 @ 7:47pm

Re: Re:
"I am noting, again, that you refuse to explain how one bag of bits is different than the other."

Interesting, but irrelevant. The "law says" what the "law says", and sidebar discussions about comparing binary files does not alter the rights of authors stated in 17 USC 106 (rights granted under copyright) and the limited archival exception for computer programs stated in 17 USC 117.

Whether good, bad or indifferent, the "right" to make an archival copy is limited by law to computer programs.

Merely FYI, I am simply a messenger and not an apologist for what comprises the text of The Copyright Act.
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Mike (profile), 30 Sep 2008 @ 8:08pm

Re: Re: Re:
Whether good, bad or indifferent, the "right" to make an archival copy is limited by law to computer programs.

Again, you are missing the point: a movie IS a computer program.
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zcat, 30 Sep 2008 @ 9:07pm

Re: Re:
Kiddy porn is also just a 'bag of bits'. The law manages to make copying or even posessing that illegal, even though there's little to no difference as far as the computer is concerned between 'kiddy porn' and your family photos.

We've just has a copyright law amendment in NZ. It's legal now to transcode your music (eg copy it to an mp3 player) but not movies. It might not make any sense to you, but that's the law. (AFAIK, IANAL, TINLA, etc)
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mink, 30 Sep 2008 @ 9:32pm

Bag'o'bits
17 USC 1 - definitions

A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

So essentially an audio/video file is a said "set of statements or instructions"...."in order to bring about a certain result": some patterns in the video memory (a motion picture).

Albeit probably it was not the intention of the law, this language is definitely explicit here (chevron defense applies?)

Granted, movies are also "audiovisual works" according to earlier definition but hence the law does not prohibit for a certain work to fall under more then one definition, it would appear that 17 USC would allow the backups...
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mink, 30 Sep 2008 @ 9:51pm

buying....what?
So what the hell do I get then I pay for a CD or DVD?

The right to "enjoy" the works I purchased no matter from what media?
or
The right to "enjoy" the works but only from the exact media I purchased?

If we assume the later, one can make a logical statement that when listening or viewing the video, we are breaking the copyright as we are not "enjoying" the "bits on the media" because we are first making a copy to electric signals and then another copy to sound waves or photons...you are all thieves!!!
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mink, 30 Sep 2008 @ 10:09pm

having a fun with law
OK, this is getting even more funny:

17 USC 101
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

So if you remember anything fromt he moview you just saw, you are making a illegal "copy", so please, forget it immediately!

BTW it appears 17 USC is distinguishing the "audiovisual" works from "phonorecords"...

BTW if I buy a movie or mp3 on line and download it, then I cannot legally move it from one location of my hard drive to another as it is illegal copy!
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SteveD, 1 Oct 2008 @ 1:10am

The difference with CDs is?
Can someone explain the real difference between this and say, Windows Media player, thats let you rip CDs for years?

That one having DRM and the other not seems a bit anecdotal in terms of what laws they fall under. It almost feels like the MPAA are sticking a post-it note on the DVD saying 'please do not copy this, signed the MPAA' and somehow that makes it illegal to.

I'm not sure how the American system works, but last I heard the UK system was gong to be changed to enshrine the right to copy for personal use.

Theres nothing necessarily malicious in that either. I know plenty of young parents who’d love to make cheap copies of DVDs so their kids don’t scratch the originals.
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Ben, 1 Oct 2008 @ 1:26am

Re: buying....what?
Unfortunately, what you are buying, you will find, is a license to use a copy of the work that the company has produced, as stated in pretty much any software, movie or music EULA that you will come across.
This does kinda suck from a consumers point of view.
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Mike (profile), 1 Oct 2008 @ 2:22am

Re: The difference with CDs is?
That one having DRM and the other not seems a bit anecdotal in terms of what laws they fall under. It almost feels like the MPAA are sticking a post-it note on the DVD saying 'please do not copy this, signed the MPAA' and somehow that makes it illegal to.

Yup, that's exactly what's happening. That's what the DMCA's anti-circumvention clause says. As long as the MPAA does *anything* to say "don't copy this" suddenly making a copy is illegal. And providing any tool to make a copy is illegal.

It's a travesty.
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William B, 1 Oct 2008 @ 6:13am

Better program?
I use a program that is flaky at best. And I don't want to pay for a program to let me watch my dvd's on my ipod. What program should I use? (I'm using windows XP)
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DanC, 1 Oct 2008 @ 8:05am

Re: Re: Re: Re:
The confusion isn't helped by the federal government's website:

http://www.copyright.gov/help/faq/faq-digital.html

You are not permitted under section 117 to make a backup copy of other material on a computer's hard drive, such as other copyrighted works that have been downloaded (e.g., music, films).

This seems to be in direct conflict with the Supreme Court ruling on time-shifting. Since time shifting is nothing more than copying material for viewing at a later time, it allows for the creation of an archival copy of copyrighted material (as long as it is used for non-commercial purposes).

The ability to make an archival copy of purchased content is typically held to be fair use, and depending on what day of the week it is, even the RIAA sometimes agrees. Since the qualifications for fair use are not explicitly defined, it is uncertain at this point whether archival copies are considered to be legal. Despite the governments copyright website however, most of the rulings on the matter lean in the direction of allowing for noncommercial personal use.
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Jeff Rife, 1 Oct 2008 @ 8:30am

Re: Re: Re:
For physical instanciations of copyrightable material, only "distribution" is infringement. The problem is that backing up a piece of software can fall into a gray area depending on where the backup gets stored (because it can then fall under the "transmitting" part of distribution) and how many copies are made (think tape rotation), so the the provision was added to specifically allow the backup. Also, EULAs denying backup had sprung up.

For other media, you can make as many copies as you want as long as you don't distribute them. So, if you buy the latest Harry Potter book, you can make 2000 copies of it and store them in your basement and you haven't infringed. The right to archive computer software was just codifying that it was no different from other media.

Making personal copies of other media (even in alternate forms) has been upheld many times by courts. In particular, VCRs were shown not to be contributory infringing devices, which means that recording TV is not itself infringing. Although not in 17 USC, case law is as much a part of copyright as it is for anything else.
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Jeff Rife, 1 Oct 2008 @ 8:40am

Re: Re: buying....what?
Unfortunately, what you are buying, you will find, is a license to use a copy of the work that the company has produced, as stated in pretty much any software, movie or music EULA that you will come across.
Don't buy into this "have your cake and eat it too" argument that the MPAA and RIAA have tried to convince people is correct.

If a DVD is software, then you have an explicit right to make backup copies.

If a DVD is not software but just a movie, then you have the first sale doctrine and implicit personal copying rights that all other media is granted.

What the MPAA wants you to believe is that by adding some language to the back of the DVD box they can restrict your rights. This is absolutely not true, any more than the NFL or MLB can require that you get "express written consent". Fair use says that you can use parts of the broadcast in whatever way you want and they have no say in the matter.
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Anonymous Coward, 1 Oct 2008 @ 11:54am

It's all moot.

Just use SlySoft's AnyDVD to copy DRMed DVDs.

Who wants to use any product by Real, anyway?
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Anonymous Coward, 1 Oct 2008 @ 12:09pm

Re: Re: Re: buying....what?
I sincerely hope you are not a practicing attorney who holds himself out to clients as including copyright law within the scope of your practice.
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mink, 1 Oct 2008 @ 10:07pm

Re: Re: Re: Re: buying....what?
No, I am not a lawyer but I am sick to pay $500/hr to lawyers that pretend they know what they are doing but instead abuse the fear of law in their clients.

What a way to make a leaving...I have no clue how they can face themselves in the mirror every morning.

I hope you are not one of them, are you?
I suppose you are, since you have not contributed anything valuable to the discussion, as nobody is paying $$$
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nasch, 2 Oct 2008 @ 7:28am

Re: Better program?
I use DVD Fab, and never had any problems with it. I have no idea if it does formats for the iPod though. But I'm guessing that at worst you could rip to something standard like ISO, and use another tool to convert to something your iPod is happy with.
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