As Expected, Judge Still Bans Real From Selling RealDVD
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.
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Filed Under: anti-circumvention, copyright, dmca, dvd copying, marilyn patel, realdvd
Companies: mpaa, realnetworks
Reader Comments
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How much was
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Spammers
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Mike, you make a very broad and wild assumption, that your personal rights trump everything else. Your personal rights bump up against other's rights and they may stop sooner or later than you expected.
Remember, real life isn't a theoretical debate by two under worked professors, it's real life.
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Re:
That's not a theoretical debate, it's stupid.
Try to follow along, pal.
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I'm following along, and trying really hard not to laugh at justifications for breaking the law.
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If you say something out loud, I can't copy it as is. I need a tool, e.g. paper and pencil, audio recorder, video recorder, to copy it.
If I'm standing in a meadow and see a fantabulous butterfly, I can't just blink my eyes and make a copy of it. I need a tool, e.g. paper and pencil, camera, video recorder.
If I own a DVD and I want to back it up, I need a tool.
Also, not speaking for Mike, but for myself, I'd prefer that my personal rights stopped where they are supposed to and not where a sh1tload of money and lawyers decide they ought to.
All I've got is real life, and it's a little too important for gangs of lawyers and clueless judges to be deciding what I should and shouldn't be able to do based on their theoretical debates.
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And, furthermore, wtf is the point?
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Re: Spammers
Movies on DVD are just annoying - A laptop that can run Spore (albeit at the lower end of the graphics settings spectrum) can't watch a DVD without some stuttering in places. I can't watch a movie off DVD on battery power, it will run out after about an hour (spinning the disk, CPU usage through the roof). Then all the free DVD players tend to be crap (VLC excepted, but all the stuff that comes with a laptop is absolute rubbish). I won't even bother complaining about zoning. :P
DVD's single greatest boon is that I don't need to swap CDs four times installing games now.
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Maybe there's bias?
Ever read her position regarding copyright outside the courtroom?
If she had been a judge in the Pirate Bay case, the ruling wouldn't be any different.
This woman clearly has a reading comprehension problem when it comes to actual copyright laws.
Thank you, judge Patel, for stripping us of yet another useful tool because YOU feel it violates copyright.
Judge. Law. Ruling. Problem.
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Right Ruling on a Bad Law
I do have to call you out, Mike, on the comparison to the Kaleidescape case. With Kaleidescape, as I read it, they actually ADDED a layer of DRM to the copy made, much to the dissatisfaction of wealthy rippers everywhere (well, it did cost north of $20K). RealDVD strips DRM and leaves it wide open on any media and at any location you choose, like the ol' DVDXCopy. Very, very different cases.
And for the angry hoards, I completely agree that consumers should be able to make backup copies of any media they purchase, and play them ubiquitously on any of their computer or A/V equipment. So you'll get no argument form me on these points.
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Breaking into your own home may be illegal
You won't go to jail... normally. But you'll get some sort of fine.
That said... kinda makes you wonder if locksmith licensing shouldn't fall under the same category. Is it really necessary in modern times when you can buy a lockpicking kit online for $10?
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Re: Right Ruling on a Bad Law
That is never the issue - the issue is that enough people don't have self control, and immediately start giving away copies to every tom, dick, and harry walking by.
I can see all the great uses for realdvd; Netflix delivers, you rip the DVD and 2 hours later it's back in the mail. Netflix delivers you the maximum every month, and you end up with a huge collection of movies (non of which you have any rights for).
Your cat walks on your computer and by chance, all those copieds of DVDs (now in ISO format) accidentily get shared on the file sharing system your cat logged into.
There is enough illegal sharing of files going on out there, why allow Real to sell a product that actively unlocks the keys to a DVD for everyone?
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Hate to be the ....
Mike could you change the line ....
"The have some rights to exclude, but those rights are limited." to
"THEY have some rights to exclude, but those rights are limited."
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I AM THE LAW!
Perhaps Judge Patel would be nick-named, "Judge Dredd" with her famous quote being "I AM THE LAW!"
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This is not for BACKUP purposes
You are only correct that you have a legal right to make a backup of your DVD, but your legal right to use that backup exists ONLY if the original is destroyed.
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Re: Re: Right Ruling on a Bad Law
lol
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Since it seems to so clearly go against my right of first sale (which I would say is also a common sense law) then I choose to ignore it.
If you want to follow it, fine, but I sir will not drink the purple cool aid you are dishing out.
Once I buy something, I will do with it as I please, and anyone trying to tell me otherwise can get bent.
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Re: This is not for BACKUP purposes
Honest question: where in the wording of the law does it say that? I haven't read it all, so I'm seriously asking where that is said. Quote?
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Further consequences of civil disobedience?
In the case of drm (ineffectual) the true aim of manufacturers is a delaying manoeuvre, buying them time on a heavily invested business model until public non compliance is so rampant they can blame the collapse on 'we the people' rather than at their own unresourceful feet.
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Re: Re: Right Ruling on a Bad Law
My opinion is right to the point where the law is broken.
Yes the software would make it easier to pirate dvds just as a knife would make it easier for a robber to steal my money.
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Re: This is not for BACKUP purposes
I'm sorry, what? I have to ask this with all seriousness, but what is a backup other than a COPY? If I backup a database, do I not create a COPY of the database? And isn't the purpose of a backup so that "the [backup] COPY is what is used" when the original is destroyed or otherwise unusable? What is the use of a backup if you can't use it in place of the original when you need to?
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Re: Re: Re: Right Ruling on a Bad Law
http://www.tcpalm.com/news/2009/aug/06/report-jensen-beach-man-claims-cat-downloaded-chil/
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Breaking into your own house....
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Surprise!
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Re: I AM THE LAW!
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Re: This is not for BACKUP purposes
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International Implications?
I've paid for digital copies of video and audio content that is protected by copyright and I will respect the copyright owners rights by not illegally distributing the content. However, rightly or wrongly, I consider it my right to chose which device in my house I will use to play the content and that implies additional form factors beyond DVD.
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Please correct me if I am mistaken, but under the specific provisions of Title 17 backup copies "aka, archival copies) pertain only to software. See: 17 USC 117
There is no statutory right to make a backup of anything else. Hence, the authority to make such a backup would need to be based upon some alternate approach such as contract law.
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Gun rights?
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uncopyable issues
My biggest problem is that they made the product uncopyable to begin with. If I have a choice between a DRM version and non-DRM version, I will almost always go for the non-DRM version even if it costs more. I have kids and kids aren't always as careful with stuff as I'd like them to be. As such, I like to make a copy and "use" my copy instead of the original. If something happens to it (e.g. gets scratched), I destroy it and make a new copy to use. I do this because it only takes a single small scratch to completely ruin a disc. Compar this to other forms of entertainment or even life in general where an imperfection does not ruin the whole work:
- page ripped in a book, you can still read around it and get an idea of what happened.
- a few bad pixels on a TV or computer screen, you can still see bulk of the image being displayed.
- a few bad sectors on a hard drive, you can still save data to other areas.
- a scratch in the side of your car, you can still drive it.
But when it comes to shiny plastic discs, if you get a scratch, Hollywood seems to want you to go buy a new replacement. The concept of backing up or archiving digital information is something everyone is told to do. If they won't allow us to back up the media and the chances of getting a disc-ruining scratch are higher than the average piece of merchandise, then how economically valuable are these discs in the first place? I really want to support the artists through buying their product, but not if it means re-purchasing the same product every year because of their flimsy design.
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Re: International Implications?
I rip all my DVDs so I that I can watch them how I want. However, I do not distribute copies to anyone. Let them buy their own. While I hate the fact that technically this may be against the law, consider it a case of civil disobedience against an unjust law.
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Re: This is not for BACKUP purposes
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Re: uncopyable issues
The other issue is what other people and Mike have already posted. Real was trying to work WITH the system... to create an application that limited the copying to just what was allowed under copyright. The response from Hollywood was that rather than try to help guide consumers to a limited copying solution and fight the UNlimited solutions, they ignore the unlimited applications and attack the one that is closest to being a valid product.
It reminds me of when the Guardian Angels in NYC got into trouble for helping to fight crime. Let's forget the true criminals and go after the easy targets trying to help. That's sure to work.... not!
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This quote by the judge sums it up
You have rights, it's just illegal to exercise those rights.
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Re: I AM THE LAW!
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Re: Right Ruling on a Bad Law
On top of that, rules of civil procedure basically state that if you and I are in a lawsuit over an incident, we have to file all our known claims about that incident right now or waive them forever. Since the CCA didn't file copyright infringement for the incident, they're barred from it forever against K (not necessarily anyone else). There are also circumstances that very likely prevent members, subsidiaries, and parent corps of the CCA (namely the MPAA) from winning on the waived issue against K.
You're also wrong in that RealDVD doesn't actually strip the DRM. It just makes a bitwise copy onto the hard drive. The problem in both cases is that even though you have DRM on the disc image, it can still be played anywhere, regardless of whether you own the DVD, because all DVD players (hardware and soft) can read that disc image. Rent or borrow a movie? Copy it bitwise, and you have it forever. So even though the DRM was not unlawfully decrypted, it was still circumvented.
The bottom line is that the judge followed the law correctly. The real question is whether that law is the best policy.
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Re: Re: Right Ruling on a Bad Law
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Even better: They set the law so that you can only go to 55 mph. Any circumvention tool that allows to break said law is outlawed. Since cars would allow you to break the speed limit, cars are outlawed. So a company makes a car, and adds a regulator so you can't go faster than 55. Then a judge says, "nay, that's still wrong. Ha ha!" and forbids you selling the car.
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Re: Right Ruling on a Bad Law
That's actually not true at all. The whole reason this is so ridiculous is that RealDVD does include DRM on the copy...
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A quote from Judge Patel..."Blame Congress!"
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...and today that decision was reversed by the appellate court.
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Re: Re: Right Ruling on a Bad Law
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Re: Re: Re: Right Ruling on a Bad Law
I disagree. The key points are still the same -- concerning the right to make use of a product you legally bought. The contractual matter in the Kaleidescape case is still backed up by copyright and the DMCA in the end.
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Re: This quote by the judge sums it up
You really are a mindless parrot, aren't you?
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"...it's illegal,"
No, brainless, it isn't. Next time have someone read the article to you, before you make a comment.
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Wow, you're either not an American, or simply don't believe in your own constitution. Although I'm not an American, I've read through the Bill or Rights and generally understand it. I may not agree with all of it, but that's another issue. However, it's clear from the language of the first ten amendments that the intention was to give Americans very broad rights and freedoms. Hate speech, which is generally illegal in most other Western countries, is protected by the first amendment, as an example. Sure, there are limits to a person's rights and freedoms, but I'm sure they're well beyond what you think they are.
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