Hollywood Kills More Innovation; Judge Overturns DVD Jukebox Ruling

from the sigh dept

Wed, Aug 12th 2009 3:53pm — Mike Masnick

Well, there goes that one. Just a few hours ago, we were writing about how Judge Patel's district court ruling barring Real Networks RealDVD system seemed to conflict with a California state court ruling for Kaleidescape. It's true that there were some differences in the details behind the ruling, but it might not matter either way, as a state appeals court has reversed the lower court ruling and has basically said that Kaleidescape's DVD backup system likely violates the DRM found on DVDs.

Once again, we're seeing a fearful Hollywood, unwilling to innovate itself, using the courts and the law to stomp out anyone who innovates. The Kaleidescape product is clearly not for "piracy" purposes. It's a server that costs around $10,000, and is designed for high-end movie fans, who want to store all of their legally purchased movies on a server so they can watch it. It didn't serve any sort of "piracy" purpose whatsoever. But, thanks to Hollywood freaking out over the fact that anyone might make a copy of a movie, even for perfectly legal backup purposes, that device may now be dead.

Time and time again, we hear folks in the entertainment industry insist that they want to support technological innovation, but their actions show otherwise. They tried (and failed) to outlaw the VCR. They tried (and failed) to outlaw the MP3 player. But lately they've been succeeding in outlawing products just because they don't like them. Doesn't that seem like a massive problem?

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Filed Under: copying, dvd
Companies: kaleidescape

32 Comments

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Anonymous Coward, 12 Aug 2009 @ 4:09pm

Silly RIAA, Kaleidescape and RealDVD is for kids :) Real pirates use Slysoft and home-brewed media servers!

Seriously, you take a segment of the market that wants and is WILLING TO PAY for what technical folks have been doing for years underground and you fight to make it illegal?

RIAA, the market is yelling at you, why aren't you listening? Your money well is drying up. Time to use the resources to re-invent while you still have the resources to do so.
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BobinBaltimore (profile), 12 Aug 2009 @ 4:18pm

Interesting...
...unlike the RealDVD ruling, this one does not hold that Kaleidescape violated DMCA, rather just that they violated the agreement with DCCA. So while the result for consumers is the same - eliminating means to copy or backup DVDs, the actual reasons are materially different.
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ChurchHatesTucker (profile), 12 Aug 2009 @ 4:50pm

Re: Interesting...
Actually, they appear to have violated terms added on after they signed the contract with DCCA. How does that work?
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Sk3ptic, 12 Aug 2009 @ 4:53pm

They tried to outlaw the VCR and...
of course the VCR became a major source of revenue for them. Billions of dollars in video tape sales that they never would have made if the courts hadn't jammed it down their throats.

They just seem incapable of getting their minds around change.
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Anonymous Coward, 12 Aug 2009 @ 5:05pm

"we're seeing a fearful Hollywood, unwilling to innovate itself, using the courts and the law to stomp out anyone who innovates."

Fearful?

Mike, come on.
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Doctor Strange, 12 Aug 2009 @ 5:12pm

According to the copyright office the provision for archival backup applies only to software. Additionally, the backup is to be used for backup purposes only: that is, if your original media is destroyed or damaged or lost. As I understand it, making a copy so you don't have to get up and change the disc or so you can use the content without the disc are not archival backup uses. They may be permitted for other reasons including fair use, but even if the "backup" provision applied beyond software I'm not sure that such uses as permitted by Kaleidascape or RealDVD were ever intended to be covered by this provision.

Additionally, copyright owners may also restrict your ability to make even an archival backup through other means, I assume through instruments like contracts.
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DJ (profile), 12 Aug 2009 @ 5:20pm

Re:
Gosh, Mike. That's a really compelling argument. I think he's right........
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Anonymous Coward, 12 Aug 2009 @ 5:20pm

A company charging 10K$ for such a shitty product should be accused of piracy.
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Mike Masnick (profile), 12 Aug 2009 @ 5:25pm

Re:
Additionally, copyright owners may also restrict your ability to make even an archival backup through other means, I assume through instruments like contracts.

You cannot take away fair use via contract.
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ChurchHatesTucker (profile), 12 Aug 2009 @ 5:26pm

Re:
"According to the copyright office the provision for archival backup applies only to software."

DVDs contain scripts (that's how the menus etc. work) so they are arguably software.
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AW, 12 Aug 2009 @ 5:42pm

The rebuttal of the rebuttal
DVDs are digital. You can not view them without a computer. They are decoded and encrypted with software algorithms. You can not view it through any other means than through a piece of hardware that interprets the language written on the disc. How does this significantly differ from software? It's funny that people defend an institution that has done nothing but break their contract with the public. Corporations only original intent were a a service to the public good. I will include a link as you probably will try to say some drivel either about times have changed, which would support the argument that the RIAAs business model needs to adapt or that I am a liar and don't know what I am talking about since those seem to be the only two things you can come up with. Also just FYI by using the internet you are now a criminal according to copyright law, since XML was copyrighted and most all web languages are derived from XML.
http://www.reclaimdemocracy.org/corporate_accountability/history_corporations_us.html
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DJ (profile), 12 Aug 2009 @ 5:45pm

Re:
No, that's just a plain old rip-off, which is perfectly legal. Morally objectionable, but legal.
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DJ (profile), 12 Aug 2009 @ 5:49pm

Re: The rebuttal of the rebuttal
I'm not a software guy, but that's an interesting point. I only say that because I hope someone can expound upon it.
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DJ (profile), 12 Aug 2009 @ 5:52pm

Re: Re:
Just to head off any arguments to the contrary let me tell you a brief story:

A guy once advertised in the classifieds that he was selling clothes dryers (plural) for $50 each. Several people thought this was absolutely the best thing they'd heard, so they sent him the money. A few days later they received, in the mail, a length of line and some clothes pins.
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Matt Tate (profile), 12 Aug 2009 @ 6:27pm

Re: Re: Re:
I heard a similar story about a 100% effective roach killer. What it included was two blocks of wood, and customers were instructed to put the roach on block A and hit it with block B.
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AW, 12 Aug 2009 @ 6:46pm

Expounding on it
DJ, the similarities are definitely there. The DVD encryption key that they use to encrypt the DVD is only accessible to a specific hardware decryption key, very much the same way that registering software with a key gives you access to the full software. Without the decryption key the DVD will still show something, but it will be unusable. Many different pieces of software are the same. It's all ones and zeros hardware decrypting the software to a visual output. Both allow for interactivity, DVDs through menus, Software through a GUI or console. Both were created and licensed under specific terms, though I am not sure where public domain software would fit in as software hasn't been fully hammered out yet. Essentially they do the exact same thing, in both idea and actual operation.
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Anonymous Coward, 12 Aug 2009 @ 6:56pm

What needs to happen is everybody needs to stop buying music and movies and get it illegally instead until the current entrenched producers go broke, and then as the new era producers start to emerge with a new business model then we all need to support them. It's the only way anything will change.
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Anonymous Coward, 12 Aug 2009 @ 7:03pm

Re:
Funny man.

If the "current entrenched producers go broke" because piracy reached such a high level that there was no real income remaining, nobody would want to jump into that hole.

That is the hippie commune mentality that says we all sing kumbya or whatever and everything will be great in the morning. Remind me how many hippie communes are left.

If there is no money in making content, nobody will make content professionally. Simple as that.
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Lonzo5, 12 Aug 2009 @ 7:04pm

Re:
Mike?

I think Mike speaks for a lot of us here in the real world. And guess what: there's no room here for those who are
-afraid- (as in afraid that they'll no longer be swimming in cold, hard cash) of changing. No matter how many pointless, unrealistic anti-consumer laws are lobbied into existence in the name of "deserved compensation", no matter how many essentially innocent folks these "content creators" (largely the ones who make the money, not the ones who create the content) unwisely opt to file suit against, the market-- not the courts-- will speak its true mind in the end. People certainly deserve to be compensated for their work, but the consumer of the goods they produce has the right to spend their money in any such manner as they choose. Fair use is not a right, it is a law of physics.
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PT (profile), 12 Aug 2009 @ 11:43pm

You might well blame the studios for bringing the case, but the court made it clear where the responsibility lies. The judgment is dripping with regret.

"Whether the public interest would best be served by continuing to enjoin Real from making its products available to consumers, and protect the Studios’ rights at the expense of the consumers’ rights, to engage in legal downstream use of the Studios’ copyrighted material is an excellent question. It is also one the court does not and will not reach, because the statutory structure of the DMCA leaves no room for ambiguity. By making it a DMCA violation to distribute products that enable consumers to override copyright owner preferences against unauthorized copying, Congress determined that the public interest is best served by outlawing such products. ... the reach of the DMCA is vast and it does not allow courts the discretion to ... render a value judgment untethered from the language of the statute. In the words of Justice Cardozo, “[l]aws are not to be sacrificed by courts on the assumption that legislation is the play of whim and fancy.” People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 62 (1920). The court is bound by the DMCA provisions at issue, even if it determines the extent to which innovative technologies realize their future potential." (emphasis added)

It might feel good to rage against the movie industry, but it won't get anyone anywhere. The only way to change anything is to make Congress feel the pain.

The really odd thing is that anyone gives a damn about Real and their DRM-encumbered bloatware anyway. For about $200, anyone can get a terabyte (oops, better not name it) media drive and fill it with all the content they like using one of the many free DVD rippers available on the net. This judgment has only succeeded in protecting the studios from people who would have bought their DVDs anyway.
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PaulT (profile), 13 Aug 2009 @ 12:20am

Re: Re:
"If the "current entrenched producers go broke" because piracy reached such a high level that there was no real income remaining, nobody would want to jump into that hole."

Yes, they would. They would do so with a business model that makes money in the digital world rather than clinging onto an outdated model that doesn't. So long as an audience exists for movies, they will always exist because there's money to be made - just not necessarily from the sale of plastic discs.

Nothing "hippy" about it. Capitalism is possible and successful without needing to overcharge for every single use of media. The problem right now is that Hollywood is attempting to block innovations that would actually encourage people to *spend more money*, in an industry that's 100% dependent on discretionary and unnecessary spending.

"If there is no money in making content, nobody will make content professionally. Simple as that."

Then how do you explain the huge amount of amateur and non-profit (the infamous "free!") material that's available for download without payment with the permission of the creator? There's such a massive amount of content being given away that instantly negates your point (though, admittedly, less movies than other media).
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Dave (profile), 13 Aug 2009 @ 4:45am

Not enough.
"Make Congress feel the pain?" Not enough. The only way to change anything is to STOP BUYING WHAT THE RIAA AND MPAA ARE SELLING YOU. Support independent artists who make music, film and video that interest you instead.

After all, if we stop giving money to the MPAA, they stop being able to pay lawyers, and these things start changing. Right?
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John (profile), 13 Aug 2009 @ 5:06am

Re: Not enough.
Wrong. The issue at hand is the fact that the DMCA prohibits the courts from interpretation. The DMCA was passed by our idiots in Congress.

That's not to say that Big Media lobbyists aren't hounding these Congressmen every time the public can submit DMCA exception requests, but ultimately it is Congress who passes the laws, not lobbyists and corporations.
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Software Guru, 13 Aug 2009 @ 5:53am

Technically... NO
The digital information on a DVD is NOT technically a "program". It is data that a program reads. The program is contained within the firmware of player or on the program that plays the DVD, in the case of a computer.

You are correct in that the menu on a DVD CAN be considered a program, since technically, it is an interactive script.

So part of it is data, part of it is a program. Which, theoretically makes it no different logically than a video game. The game contains a script that runs on your computer, the script displays data read from your hard drive or the DVD depending on your actions.

But the music/movie/government can NEVER, EVER be accused of being logical.
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drfinale (profile), 13 Aug 2009 @ 7:27am

Re:
Why is it then fair use to do basically the same with with music CDs? Maybe I'm misunderstanding, but isn't the Kaleidascape basically the same thing as a music server for DVDs. If copying music to music servers and MP3 players is fair use, then copying a movie to a similar device should also be fair use.
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pixelpusher220 (profile), 13 Aug 2009 @ 8:33am

Re:
You're half right. Stop buying music and movies produced by the RIAA and MPAA.

The 'get it illegally' part is a problem since that just gives them ammunition to get these draconian laws passed in the first place.

Don't use their produce *at all* and they will go away.
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Anonymous Coward, 13 Aug 2009 @ 9:46am

It doesn't pay for Hollywood to be forward looking because everyone is afraid be the one to let the cat out of the bag with a clueless decision. Conservative policies are always safe for entertainment executives; this is unlikely to change. Thus, the best we can hope for is Hollywood to push against technology but get nowhere. The harm is when Congress buys into this corporate inertia rather than relying on a balanced policy of copyright law that has evolved over the last two hundred years. The blame here lies with Congress for throwing away copyright law jurisprudence to satisfy short-term Hollywood fears.
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Chuck Norris' Enemy (deceased) (profile), 13 Aug 2009 @ 11:51am

Download...don
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Chuck Norris' Enemy (deceased) (profile), 13 Aug 2009 @ 11:54am

Re: Download...don't copy!
So...if I want to back up my DVDs I should torrent a copy to my hard drive. I have the right to a copy and I didn't have to directly and personally circumvent DRM. I am freeeeeee!
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Rekrul, 13 Aug 2009 @ 4:21pm

How long will be it be before all technology companies are required to have representatives from the music and movies industries on their board of directors to ensure that all new products meet with the content industry's approval?
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foobar, 13 Aug 2009 @ 7:07pm

Re:
You cant sign away fair use.
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lens42 (profile), 14 Aug 2009 @ 1:03am

"profesionally"
EXACTLY. People who need to create art will do it anyway. 95% of all musicians barely make a living now! The DMCA is not helping them one iota. John Phillips Sousa wrote an article against music recordings when the Victrolla appeared. NOT because he was afraid of losing income, but because he was afraid people would stop learning how to PLAY music. He was right. Imagine that nobody makes money selling recordings anymore and the only thing people will pay for are live performances, and if you want to hear music, you have to PLAY music. That doesn't sound too bad to me.
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