MPAA Points Out That Real Once Argued Against Fair Use Exceptions To The DMCA

from the flip-flop dept

Fri, May 22nd 2009 1:03pm — Carlo Longino

The MPAA's suit to block Real Networks' RealDVD software rolls on, with some twists and turns. The latest is that the MPAA says that about 10 years ago, Real made the same argument that the MPAA is making in this case, saying that there is no fair use exception to the DMCA. Real used the argument in a case against Streambox, which created software that let people record Real streams. It prevailed in the Streambox case, so the MPAA asked the judge for an estoppel ruling, which would preclude it from arguing for fair use in the current case, since the argument contradicts its earlier position. Closing arguments in the case have wrapped up, and there's no indication when the judge will issue a ruling -- nor whether Real's apparent change of heart on fair use and the DMCA will hamper its efforts.

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Filed Under: copyright, dvds, fair use
Companies: mpaa, realnetworks

17 Comments

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Rekrul, 22 May 2009 @ 1:26pm

Funny how that works...
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TheStupidOne, 22 May 2009 @ 1:29pm

Companies aren't allowed a change of heart? I say they should be able to flip-flop like politicians
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Tim, 22 May 2009 @ 1:41pm

The difference is that CSS isn't hard to break. The DCMA protects against circumventing encryption for non-reverse engineering purposes. However today, CSS is not an encryption scheme.

It's the difference between a screen door and a safe. The DMCA makes it illegal to open up the safe, but not the screen door.
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Fred (profile), 22 May 2009 @ 1:44pm

Estoppel cop-out
While it would be horrible in any case if the MPAA won this judgement, an estoppel ruling kind of gives the judge an easy-out, as such a ruling would not set a precedent for most future such "No DMCA Fair Use" case arguments. To state this case as precedent, the MPAA will have to find a past case where each and every defendant similarly claimed there was "No such thing as a DMCA Fair Use exception." The first defendant who never made this claim (in court previously) has a brand new case, and this one might as well be thrown out of the history books whenever that situation arises.

An estoppel ruling would also set up an interesting legal feedback loop, in that no current content companies who value the DMCA would ever win against someone suing them for a DMCA violation, but everyone outside the DMCA-loving system has a better defense. It would also have a chilling effect on future similar arguments about the DMCA by anyone except the MPAA, which is just fine with me. Also, Real Networks *should* be penalized for blindly embracing the DMCA in the past, but I'm not sure this is the way to do it. The way I have chosen so far is not to buy or use any of their products.
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Anonymous Coward, 22 May 2009 @ 1:48pm

Re:
I could understand using this argument against breaking region encoding since that's just a flag that says "you can view this dvd", but CSS is certainly an encryption scheme. Just because it's easy to break doesn't mean it's not an encryption scheme.

Of course, it's pretty likely that Real is doing the same thing that a previous dvd copier was doing, and just grabbing the mpeg2 stream after it's been decrypted. Of course, that defense didn't work last time so it probably won't work this time either.
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batch, 22 May 2009 @ 2:10pm

While this is humorous, are the same executives or legal team still working there? Corporations aren't a single person, they're made up of people, people who may not have been working there 10 years ago, so the actions of the predecessors don't necessarily have any bearing on the current management.
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sehlat (profile), 22 May 2009 @ 2:15pm

If it weren't so serious, I'd laugh like hell.
Isn't it funny how companies will argue a position when it benefits them, and the opposite when it benefits them?

Consistency is soooo hard to achieve. :)
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Anonymous Coward, 22 May 2009 @ 2:18pm

Re:
Corporations aren't a single person, they're made up of people,...

No, the US Supreme Court has ruled that corporations are legal persons.
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Fred (profile), 22 May 2009 @ 2:19pm

Re: still working there?
@batch: It doesn't really matter who was working at Real, then and now. That is the nature of the "limited liability" status of corporations -- the liability is with the corporation, and not the individuals that form that corporation, so current representatives speak for all future representatives.
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munk, 22 May 2009 @ 2:36pm

Re:
the law views a corporation as an artificial 'person'. Common sense says otherwise, but the law isn't about common sense (after all, prop 8 passed in California).
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AnonCow, 22 May 2009 @ 2:46pm

I can only hope that the MPAA (and the RIAA) will make themselves as irrelevant over the next ten years as Real Networks has made itself over the last ten years.

The MPAA/RIAA seems to have all the key components:
-Run by egotisitical morons
-Us v. Them, Zero-sum, walled garden attitude
-Litigate against any perceived competitor
-Try to protect outmoded model that is already obsolete
-Oblivious to impact of wide-spread hatred and resentment
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Anonymous Coward, 22 May 2009 @ 2:49pm

Hey, Real, ain't karma a bitch!
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Washii, 22 May 2009 @ 4:53pm

Re: Re:
IANAL, but the Supreme Court never actually ruled that. There was just a flippant comment by a court officer or a judge that was pseudo off-the-books.

I think I learned that in a Microecon class, strangely. Straight Dope was forced to take that up: Straight Dope - Supreme Court Ruling Corporation = Person
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Anonymous Coward, 22 May 2009 @ 5:48pm

never mind
Ohhh ...
its estoppel not gestapo
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Hephaestus (profile), 23 May 2009 @ 3:28pm

Hmmmmm....
The law in the USA unlike western Europe is based on previous judgements and the law as written, not the intent of the laws authors. I dont see any problem with flip flopping legally as long as the case law follows the same "flip Flop".
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Zip the wonder frog, 25 May 2009 @ 9:54pm

CSS =isn
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Zip the wonder frog, 25 May 2009 @ 9:57pm

CSS =isn't= that easy to break! (2nd try :)
The only reason people think CSS is easy to crack is because of the DeCSS. But what a lot of people don't understand is that DeCSS wasn't the result of cracking. What happened is that there was a company called Xing (which, curiously enough, later got bought by RealNetworks) that introduced an otherwise legal player that had a poor implementation. Under the license, you can't sell a player that doesn't protect the algorithm from debuggers and bus snoopers, etc.The Xing player wasn't properly designed, however, and it allowed access to the code, which got disassembled. And that's how the algorithm and an initial set of keys (the ones that had been issued to Xing) were discovered. Only after the algorithm became known did anyone realize that it might be subject to attack based on its use of weak 40-bit encryption.
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