Rules DVD-Copying Software Is Illegal
By David Kravets August 11, 2009 | 10:08 pm | Categories: Copyrights and Patents, Digital Millennium Copyright Act, The Courts
SAN FRANCISCO — A federal judge ruled here late Tuesday that it was unlawful to traffic in goods to copy DVDs.
U.S. District Judge Marilyn Hall Patel’s ruling came in a decision in which she declared RealNetworks’ DVD copying software was illegal. She barred it from being distributed.
Patel said the RealDVD software violates the Digital Millennium Copyright Act of 1998 that prohibits the circumvention of encryption technology. DVDs are encrypted with what is known as the Content Scramble System, and DVD players must secure a license to play discs. RealDVD, she ruled, circumvents technology designed to prevent copying.
But the decision, although mixed, left open the door that copying DVD’s for personal use “may well be” lawful under the fair use doctrine of the Copyright Act, although trafficking in such goods was illegal.
“Because RealDVD makes a permanent copy of copyrighted DVD content, there is no exemption from DMCA liability, statutory or otherwise, that applies here. Whatever application the fair use doctrine may have for individual consumers making backup copies of their own DVDs, it does not portend to save Real from liability under the DMCA in this action,” Patel wrote (.pdf) in a lawsuit brought by Hollywood.
However, she stopped short of sanctioning personal use copies, and gave a conflicting message on whether it was legal. “So while it may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual’s computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies,” Patel said. She added, “fair use can never be an affirmative defense to the act of gaining unauthorized access” — a simple way of saying it was illegal to hack into the encryption to make a copy.
“These seem to be contradicting points,” said Fred von Lohmann, a copyright attorney for the Electronic Frontier Foundation, a civil liberties group based in San Francisco.
The decision, minus the fair use language, mirrored the 2004 decision by another federal judge declaring as illegal DVD copying software from 321 Studios. The difference was that RealNetworks secured a Content Scramble System license, and claimed a loophole in the license allowed its RealDVD software to make hard-drive or thumb-drive backup copies of movies.
The lawsuit represented Hollywood’s worries that RealDVD and other fledgling DVD-copying services might ruin the market for DVDs if Patel legalized RealNetworks’ product. Even with Tuesday’s decision, the U.S. courts have not squarely ruled on whether it is legal to copy an encrypted DVD for personal use.
The studios were fighting to keep from going the way of the music industry, which years ago lost much control of the unencrypted CD to peer-to-peer file-sharing services. Consumers may place their CDs into their iPods, but the decision leaves unsettled whether the same is true for the DVD.
The motion picture studios, which brought the case, argued to Patel that copying a DVD was illegal, even if was for personal use. RealNetworks claimed consumers could make personal copies of their DVDs.
To be sure, Hollywood lobbied hard for the DMCA, which helped give rise to the encrypted DVD.
“This is a victory for the creators and producers of motion pictures and television shows and for the rule of law in our digital economy,” said Dan Glickman, chief executive of the Motion Picture Association of America.
RealNetworks of Seattle introduced the software last fall, and Judge Patel ordered it off the market after only a few thousand copies were sold. Because of procedural rules in federal court, RealNetworks got another chance to try to convince Patel to allow the software onto the market.
RealNetworks could still pursue a jury trial, a move that likely would not change the result and would not be settled into late next year or 2011 at the earliest.
“We are disappointed that a preliminary injunction has been placed on the sale of RealDVD. We have just received the judge’s detailed ruling and are reviewing it. After we have done so fully, we’ll determine our course of action and will have more to say at that time,” RealNetworks said in a statement.
Patel, the judge in the original Napster case, said her decision was supported by the legislative history of the DMCA, which was aimed at outlawing so-called ‘black boxes’ “that are expressly intended to facilitate circumvention of technological protection measures for purposes of gaining access to a work.”
Still, Hollywood is already reeling from illicit, open-source DVD decryption software that is free on the internet and remains illegal in the United States under Patel’s ruling. But Patel’s ruling might make the studios think twice before suing an individual for making backup copies of their DVDs for personal use.
Hollywood, meanwhile, claims it loses billions in sales because of BitTorrent tracking services like The Pirate Bay and others that allow consumers to locate decrypted movies and other online content for free.
