RealDVD case: Real introduces surprise witness

Update 6:20 a.m. Thursday: To include more background on new witness.

RealNetworks introduced a new witness in the RealDVD case on Wednesday, a move that comes late in the court proceedings that could decide the software's fate.

Real is locked in a court battle with the major movie studios over RealDVD, a software that enables owners to copy DVDs and store them to a hard drive. The Motion Picture Association of America filed suit against Real last fall, accusing the company of violating copyright law and breach of contract. U.S. District Judge Marilyn Patel could rule on whether to remove a ban on the sale of RealDVD as early as Thursday.

Real on Wednesday filed with U.S. District Court for the Northern District of California a written declaration from Peter Biddle, an Intel executive who had dealings with the movie industry over a decade ago while employed for Microsoft. He disputes Hollywood's claims that the industry included in a license for its DVD-encryption technology a ban on copying DVDs while in a computer hard drive.

Real argues that because it possesses a license to use CSS and because the license doesn't prohibit the copying of DVDs in all cases, Real isn't guilty of breaching its contract.

What Biddle focuses on in his statement is the license for DVD Content Scramble System (CSS), the encryption technology designed to prevent copying of DVDs. Companies need the license to make DVD players. In his declaration, Biddle says that he was part of the "standards-setting" group that helped draft the CSS license between 1996 and 1998. According to court documents, he has not been compensated by Real. It is not yet clear whether Patel will allow Biddle to testify in court.

He confirmed that the film industry was initially against allowing the copying of DVDs under any circumstances. But he said eventually the studios relaxed their position.

Real says it couldn't find Peter Biddle until May 6th. Perhaps it should have tried simple Google search.

(Credit: LinkedIn)

"I repeatedly explained that such a prohibition would be extremely difficult to implement," said Biddle in his declaration, recalling what he said during negotiations on what language the CSS license should include. "Because computer and software products rapidly evolve, the CSS license was designed to enable computer manufacturers to have significant freedom."

He says it was never agreed to that the CSS license would ban all copying.

Marsha King, a retired vice president at Warner Bros., testified during the hearing that the entire reason for the CSS license was to prevent consumers from creating copies.

"The studios were adamant that no copy be placed on the (computer) hard drive," King told the court. "The only thing we authorized was playback of the movies...no copies were to be made...it was a mantra."

In the past week, Real has introduced Biddle and filed new allegations against the film industry, accusing them of antitrust violations. The question is whether these moves are just 12th-hour legal wrangling or will have legitimate impact on the case.

In a letter to Patel, Real's attorneys said that they were unable to locate Biddle until May 6, and weren't clear about what he would testify to until Wednesday. This makes little sense as Biddle, the man behind Microsoft's BitLocker technology and Darknet, is pretty high profile and a Google search quickly reveals he is Director of the Google Program Office at Intel and lives in the Seattle area.

Patel is scheduled to hear closing arguments on Thursday morning. There's no telling when she will issue a decision, but she has a history of ruling from the bench.

[sharmajunior]

Oooooooooohh....THis is getting better day by day...

[karpenterskids]

This just keeps getting more and more interesting. :)

[sandonet]

I'm hoping the case continues this trend today in court. There is liable to be a big fight over whether to include Biddle's testimony and Patel could issue a decision from the bench, which would save us from having to wait for a written decision. I'll be blogging about it from the courtroom. GS

[Shutterstuff]

We have been able to rip our CD's to our HD's legally since digital music on PC's began. I find it hard to believe it is illegal to do this with my DVD's. Get a grip Hollywood and quit acting like the RIAA!

[rdnetto]

But there's a difference. We can rip music because it's fair use, and *in theory* the same should also apply to DVDs. However, because of the DMCA, it is illegal to circumvent the DRM on the DVDs in order to copy them, even if it would be well within our rights otherwise.<br />This is one of the reasons that the DMCA is so unpopular.

[darfjono]

screw the DMCA. worthless paper and a law not worth thinking of. just copy your DVD's. they can't stop you.

[zyxxy]

darfjono: Do you have any concept of the rule of law? As soon as you go down the path of 'worthless' paper, then your personal rights fly right out the window. Oh, 'your' car? Who says? That registration? Ah, a worthless piece of paper. By the way, I am moving into 'your' house. Mind if I write a few checks from 'your' account?<br /><br />I don't like the DMCA. The very idea of making the act of reverse engineering a criminal act is stupid. Excuse me, let me spell that with two 'o's, stoopid, to convey the full depth of the idiocy of the law. However, declaring laws as being worthless paper is hazardous to your own peace and existence, and you do so at your peril.<br /><br />Also, you can stomp your feet about the stoopidity of the law, or claim ignorance, and neither will keep your butt out of prison if you are caught in violation. So no, they cannot stop you from making copies, but currently, they can stop you from leaving your cell.

[Mergatroid Mania]

This is exactly why the DMCA should be ruled as invalid.<br /><br />People have a RIGHT to fair use. If the DMCA prevents people from excercising that right, then it must be invalid.<br /><br />How can you have two laws in the system, one that says you can do something, and another that says you can't?<br /><br />Besides, Real is not ripping the DVDs. They are copying everything including the DRM to the hard drive. How does this violate the DMCA? Also, if the copy protection does not work, that is you can still copy the DVDs without altering the copy protection, then how does this even qualify as copy protection any more? What's it protecting? The same average consumer who still can't figure out how to copy a DVD isn't going to have any better luck copying from the hard drive after the DVD contents have been placed there.

[SaturatedFats]

This is hardly a unique situation, Mergatroid Mania. Very few if any "rights" are absolute. For example, you have a First Amendment right to free speech. As rights go, it's hard to get more fundamental than that one. But even your right to free speech is not unrestricted. For example, it doesn't give you the right to yell "Fire" in a crowded movie theater, or to taunt someone with "fighting words," or to deliberately speak or print false and malicious claims about someone you don't like.<br /><br />In the case at hand, the DMCA affirms that you have a fair use right -- but not if the only way to exercise it is by circumventing copy protection. Just like every other right, you've got this right, but it's not unlimited.<br /><br />And make no mistake, RealDVD does circumvent some copy protection, namely ARccOS and RipGuard. Real may or may not have certain rights under their CSS license to copy a DVD, depending on how the Court decides to parse the license agreement. But they certainly don't have a license to break ARccOS and RipGuard.<br /><br />For that matter, it's worth clarifying two points. First, a lot of people believe CSS is very easy to crack and point to the existence of DeCSS. Second, they think copying ARccOS and RipGuard discs is no big deal because they think free stuff on the web like Handbrake has been doing it for years. Both of these beliefs are mistaken.<br /><br />CSS didn't get cracked in the conventional sense of someone analyzing a DVD as a black box and figuring out how to break the (admittedly weak) 40-bit encryption. What actually happened is that the otherwise legal Xing player was badly-designed and allowed access to the internal code, which was then disassembled to discover the algorithm. The CSS license says you're not allowed to create such sloppy implementations. Only after the algorithm became known was it discovered that it might be susceptible to brute force attack.<br /><br />Curiously enough, Xing was bought by RealNetworks in 1999 so it's kind of ironic that Real would argue that RealDVD isn't so bad compared to all the pirate stuff on the web given that the big reason all that stuff exists is because a company Real bought was careless about the technology. It's a little like throwing yourself on the mercy of the court as an orphan at trial for having murdered your parents.<br /><br />Also, contrary to what most people seem to think, it's just not very easy to copy ARccOS and RipGuard discs. The much-touted Handbrake, for example, fails. Contrary to Real's claims that ARccOS and RipGuard aren't effective, the actual evidence is that they're very effective. It doesn't appear from searching I've done that there's anything out there on the web that can reliably copy these discs. Even RealDVD has only mixed success reading ARccOS and RipGuard discs despite the fact that Real has (apparently) been working on the problem for over a year and all the resources that a $600M corporation might bring to bear on the problem.

[pentest]

You don't need to circumvent encryption to make a copy of a DVD!

[koderkev]

@shutterstuff - Hollywood IS the RIAA and the MPAA.

[ry_jones]

go Peter!

[thelemurking]

It never ceases to amaze me that how everyone in the tech world once shunned, despised and hated hated Real and their software... has no come to stand up for them in their battle against the MPAA. It only goes to show how much hate we have for the RIAA and MPAA if we are showing our support for Real. <br /><br />That would be like showing our support for WeatherBug almost :p

[darfjono]

i hope real wins. frak the copyright MAFIAA.

[SaturatedFats]

Biddle's claims that he argued that an absolute ban on copying could be hard to enforce and that "the CSS license was designed to enable computer manufacturers to have significant freedom" are misleading.<br /><br />The reason an "absolute ban" would be hard to enforce on a PC is because any software player running at the application layer will necessarily be creating transient copies of parts of the movie data in various buffers as it goes about its business of playing the movie. And because it's running at the application layer, some of that data may get swapped out to hard disk by the virtual memory system. An absolute ban on any movie data getting copied to hard disk, no matter how little data was involved and no matter how quickly it was erased, would have made it extremely difficult to create conforming players on a PC.<br /><br />But there's a world of difference between transient copies of bits and pieces of the movie that come and go as the movie is played and a system deliberately designed to purposely create persistent copies.<br /><br />So I'm a little shocked that Real would be presenting such a disingenuous claim that the license is intended to allow copying when it seems pretty obvious that, if and when Biddle is actually put on the stand, he's going to be torn to shreds for the apparent deception.

[Michichael]

Didn't Blizzard recently win a case against a bot programmer by arguing that he made copies of their software in RAM, violating their copyright because he didn't have a license to do so? It would seem, by this logic, that if Real is copying WITH a license, as any DVD player WITH the license does (copies to memory for playback, ala WoW is copied to memory to play) then the MPAA and RIAA have nothing to stand on. When they license it's copying, they don't specify the mode of copying. Copying is required for playback. A license is required to copy. They worked within their license.

[pentest]

The only thing that is obvious is that you are a paid shill.

[Dalkorian]

The ability to perform a Google search is not equivalent to "finding" a person and it's a little silly to imply, let alone flat out state otherwise. For court purposes, you would likely want to contact the individual to confirm the data you Googled is up to date and accurate (oh and by the way, would you mind showing up to testify for us?) and it would be foolish to claim you "found him" until you got a response back.<br /><br />But that doesn't help grind your axe, does it Greg?<br /><br />I've never found myself in support of Real before, but go Real! Stick it to those MAFIAA ... uh ... folks of unwed parentage.

[SaturatedFats]

All reasonable points, Dalkorian, but the bigger point is that Real has known they were going to be fighting this lawsuit since last September. And Biddle really and truly isn't that hard to find. You can even find his home address in the FCC database at http://wireless2.fcc.gov/UlsApp/UlsSearch/license.jsp?licKey=2880360 Because he's a ham operator, KE7KYL, he's required by Federal Law to keep that information up-to-date. Also, if you go to Biddle's LinkedIn page, you'll notice that one his recommendations was from Jim Burger on Dec 19, 2006. Mr. Burger is an outside attorney for RealNetworks.<br /><br />Also, if you want someone to testify at trial or at a deposition in a federal lawsuit, whether they "mind" really isn't of any consequence. You simply issue a subpoena, which has the effect of a court order. They show up or else!<br /><br />I really, really think RealNetworks could have "found" Biddle anytime they wanted.

[Michichael]

Just because they subpeona doesn't mean somebody will give testimony that's A) relavent, or B) supportive of your case. <br /><br />If I was just up and subpeona'd for no known reason and hassled into court to testify for some jackass, I'd, speaking only the truth make life hell for them. They need to make sure he has relevant information and is willing to supply it.