At RealDVD hearing, MPAA says copying DVDs never legal
Updates are noted at the bottom of this story.
Will RealNetworks CEO Rob Glaser see his company begin selling RealDVD again?
(Credit: RealNetworks)SAN FRANCISCO--Attorneys for the Motion Picture Association of America attacked fair use during a hearing in the RealDVD case here on Thursday, claiming it is not a defense for violating the Digital Millennium Copyright Act. To prove its point, the MPAA relied on RealNetworks' own testimony in a prior case.
U.S. District Judge Marilyn Patel is due to decide whether Real can once again start selling RealDVD, the software enables users to duplicate DVDs and store copies on their computers. The MPAA filed suit last September and accused Real of violating copyright law and breach of contract. Patel temporarily banned sales until hearing from both sides.
The case potentially could go a long way to determining whether it's lawful for a consumer to make backup copies of their DVDs and is being closely watched by fair use proponents.
Patel raised a crucial question during the MPAA's closing arguments. She asked Bart Williams, one of the MPAA's attorneys, whether a consumer possesses the right to copy a DVD he or she purchased for personal use.
"Not for the purposes under the DMCA," Williams said. "One copy is a violation of the DMCA."
Then Patel tried again. This time she asked about a hypothetical device that sounded very much like Facet, the DVD player that Real is planning to release that copies as well as plays DVDs. Real says that the copies of movies made by Facet are locked in the box and can not be distributed illegally.
"What if Real or someone made a device that allowed for making a copy only to the hard drive that is on that machine?" Patel asked Williams. "And you can't make another copy from that. Would that be circumvention of the DMCA? Would it in fact mean that it really was sufficient fair use under the DMCA?"
"Yes it would be circumvention," Williams replied, "and no it would not be fair use. The only backup copy Congress envisioned was archival, that you would never use until such time when your main computer wasn't working...Congress would not have gone through the process or have this process if you're going to say there is some fair use rights that allows you to circumvent."
Real once argued against fair use
Williams then told the judge that Real had argued against fair use in a legal case the company brought against Streambox nearly 10 years ago. Real filed suit against Streambox for creating the Streambox VCR, a system that enabled users to copy Real's streaming music and video. Streambox argued that users were making fair use copies. Real sought a temporary restraining order, just as the studios have in the current case, which was granted.
"There is no fair use defense (for Streambox against the DMCA)," Real argued in that case, court documents show. "The DMCA does not have a fair use exception allowing individuals to circumvent access and copy protection measures.
"In enacting the DMCA," Real continued, "(Congress) expressly outlawed products such as the (Streambox VCR) that serve to promote the unauthorized copying and distribution of copyrighted works."
For this reason, Williams asked the judge for an estoppel ruling against Real. This is a legal doctrine that would bar Real from arguing for fair use because it had made a counter argument--and prevailed--in a prior case.
Real is vulnerable to DMCA violation claims. The copyright law prohibits anyone from cracking copy protections.
Even if Patel rules that Real did not circumvent Content Scramble System, the studios encryption technology, which the MPAA claims it has, Real has to prove that it did not circumvent ARccOS and RipGuard. These are copy protections measures some of the studios use as an added layer of protection and are not covered in the CSS license Real obtained from the studios.
In previous court proceedings, MPAA lawyers presented e-mails and testimony that showed Real worked hard to find a way to get past ARccOS and RipGuard, including the hiring of an overseas company that the MPAA alleges is run by "Ukranian hackers."
Williams wrapped up and then it was Real's turn.
Case is about stifling competition
Don Scott, one of Real's attorneys told Patel that security wasn't an issue in the case because the copy protection, AES-128, that Real uses to protect the copies RealDVD makes is better than CSS. He said the case was really about the studios' attempt to stifle competition.
He said Real needs to make a copy to the hard drive in order for consumers to enjoy the many features that RealDVD and Facet offer.
As for the studios' claims that RealDVD and Facet can be used to copy rented or borrowed films without compensating the studios, Scott said Real could block copying of rentals if the studios cooperated by including some kind of identifying marks or "serial number" on the discs, but Hollywood has refused.
As for fair use, Scott said the MPAA was wrong.
"We believe the buyer has that right to play a DVD as many times as they want," Scott told Patel. "We think he also has the right to make a copy, this fair use copy."
Scott compared DVDs to music and pointed out that the music industry allows users to make copies. "This is the experience that has been recognized as lawful fair use," Scott said. "These same studios have talked about CDs. A purchased CD can be copied to a computer and then transferred to an iPod without any charge to the consumer."
Before breaking for lunch, Patel wanted to discuss Real's request to hear testimony from Peter Biddle, a former Microsoft employee who helped draft the CSS license and who came forward on Wednesday evening, after the court had finished hearing witness testimony.
Real told Patel that they were unable to find Biddle, who if allowed to testify would contradict the studios claim that the CSS license was intended to always forbid the copying of DVDs.
Patel denied Real's request. "Your inability to find him I find inexplicable," she told Real's lawyers. "I found him on Google in three minutes. I don't buy it."
Both sides completed their closing arguments and the hearing adjourned without any decision from Patel. There is no telling how long she will take to issue a ruling.
Update 12:50 p.m. PDT: To include more on MPAA's request that Real be barred from arguing for fair use.
Update 1:20 p.m. PDT: To include Real's arguments about fair use.
Update 3:11 p.m. PDT: To include Patel's denial of a request to hear testimony from Peter Biddle.
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET. 
This is a double standard in the world of digital media. If this were the case, would that make Windows Media Player, RealPlayer, and even iTunes illegal to the effect that all of these allow you to copy a music CD onto your computer's hard drive in the same way that RealDVD would allow you to do the same with a DVD?
And now, with most online music downloading services going to DRM-free on their music, wouldn't this in fact open the door for music piracy once again? How come the RIAA hasn't raised a tiff about this?? With music CDs and DRM-free music, you can make multiple copies of these and put them on multiple computers. Under the DMCA, wouldn't THIS be circumvention?? The MPAA doesn't have a valid case here because if they did, we would also be hearing from the RIAA in terms of digital music regarding DRM-free music downloads.
Bottom line: It's OK for me to copy or import a CD into iTunes, but it's NOT OK for me to do the same with a DVD???
Especially with software like RealDVD that Real claims can copy a DVD onto the hard drive and only allow it to be played on up to 5 computers, exactly the same to what Apple's iTunes allows for music, TV shows, and MOVIES purchased from the iTunes Store.
Something to think about...............
I think the MPAA has been sniffing glue.
Don't you suppose the movie companies would have realized that if not even they could make copies, it wouldn't be a very useful system.
You may own the rights to the content, you are not licensed to make the disk. When you send the disk to a duplication house, you are using the duplication houses rights to the DVD format.
But the point is, if you own the content (i.e., you own the copyright) you get to decide who shall be authorized to make copies and how many will be made. That's what copyright means. If you don't own copyright, you can only make whatever copies the copyright holder has authorized or (in some cases) those copies which might be permissible under fair use.
http://www.terindell.com/asylum/docs/asylum.html
A way to make more money by doing nothing for it...
That brings up another important issue. If you have a copy of anything out of print for 1-2 years, it should automatically go into the public domain.
True. VCRs established "Time shifting" (record now, watch later) as fair use. Thus DVR's were fair use tested before they hit the market. Naturally they are working to ban some shows from being on DVRs in spite of our fair use rights.
Fair point. However consider how copies are made. Via data streams. If you point the stream at the TV Screen or point the stream at another file you get different results. The "data stream" problem is one reason BluRay is so invasive on your hardware requiremtns to watch it.
[CNET editor's note: Profanity deleted.]
It's actually more restrictive with BlueRay. You can literally put a BlueRay disk in your BlueRay player and end up with nothing to watch because a link in the chan is missing a DRM requirement to play back BluRay.
Congress needs to repeal the DMCA law. It is one of worst pieces of BS legislation every brought onto the people as a result of lobbying.
There once was a time when you could make a copy to tape your LP album. Tape included cassette and reel to reel (I don't remember 8-track recorders.). There was no law against it and you protected your investment of that LP from being degraded from the stylist wear by having and using the tape.
Comes along a new media (CDs/DVDs) and these idiots want to make everyone a criminal for making a copy of something they bought to protect their investment from damage. Because these idiots won't replace your damaged disc!
This just another reason why we need to repeal 78% of the laws we have, remove all lobbyist, cut congress back to a minimum of service to just 90 days with no compensation for their civic service. Right now these power hungry morons and have turned a civic duty into a paid career in which every day they are taking your freedom and liberties away one at a time.
And you people are too stupid to comprehend what they are doing to you.
Fast forward to today. Digital copies are perfect and can be distributed for next to no cost. Pirates hide behind bogus claims of fair use and profit from the illegal copying of media. This has lead to a significant decline in record/movie company profits and there is plenty of incentive for them to go after all examples of copying and try to narrow the definition of fair use. If they did not do this then their share holders could sue them for not protecting profits.
You and I may well see it differently to them, and I as an artist would be happy to see the demise of the record companies, but let us also be realistic here. Claims that it was never illegal to make copies of recordings before the digital era are simply not true. Copyright protection did not exist in the Renaissance but over the last 500 years there has steadily grown protections against copying other peoples intellectual property without recompense. This applied to inventions and books at first but gradually extended to cover music, art, and movies. Throughout the 19th century the USA built its economy on the back of patent laws (which are just another name for copyright when applied to inventions) which protected the rights of American developers of intellectual property while extending no such protections to the citizens of any other country. As economies became more entwined International agreements extended protections internationally and it is generally understood that it is unfair business practice for say a Chinese company to make a product that copies directly a product that was developed at great expense by an American firm and vice versa, and then to sell it for a profit.
Movies and musical recordings also cost money to produce. Some movies cost over 100 million dollars so the investment can be huge and it is reasonable to expect that those investors try to recoup their costs and hopefully make a profit as well. The wholesale copying of dvd's that are simply for archival in nature, (which means stored away and never watched but used to restore a copy in the event that the copy in use no longer functions) does not endanger the industry's economic model and would not likely be pursued as being neither worth it nor a violation of fair use policies.
In the case of Real they complicate the interpretation of fair use because the copy is or can be used for more than just archival (non-viewing) purposes.
In the real world (pun not intentional) while many are like you and me and simply make back ups as back ups and no more, a large number of people do not care and illegally distribute and then tend to claim fair use protections when caught. So there can be no surprise that the record companies seek as narrow a definition as possible of fair use and it is also not surprising that a machine like Real's frightens them. It establishes a legal precedent for software that circumvents copy protection if allowed on the market and is potentially a major gateway for wholesale copying of movies. Hence the profit losses could be huge if Real succeeds and it is worth every cent for the movie company's to pursue this in the courts.
Laws may have been tightened and extended in recent years but the general principle of it being illegal to copy recordings has been consistent. Don't mistake the lack of prosecutions in earlier times for legality. The thing that has changed is the economics of enforcing/not enforcing the law or having the courts decide where the boundaries actually lay.
Since you could legally make a mix use Tape from your Vinyl and give it to your friends and be within the law (fair use as proven in courts), I think you will find fair use did allow the backup.
One thing you need to keep in mind as an artist is that copyrgiht gives you absolutly no right whatsoever for compensation for your work. It only gives you a right to market it and a protection for that right.
You should also be aware that we all produce copyrighted work. However most of us don't get to benefit the same way a writer, playwright, or musician would. My design for a road that you drive on is copyrighted. I don't get to charge you a toll to enjoy it or the safety it has afforded you. I'm paid by the hour and it's assumed that I'm giving up all my IP for the beneif of the public. And I do.
This is my biggest pet peeve with ITUNES i loose my hard drives all the time due to cleaning etc, and have lost so much music I payed for and can't get back.
http://thecontent.wordpress.com/2006/05/24/itunes-lets-people-re-download-all-your-music-once/
You should also get a good external hard drive and incremental backup software.
While I'm no Apple fan. Its not their fault you are a ****. seriously. You can backup any ITMS file that is created and stored in your Music directory. You can back it up to an external hard drive, online, on a DVD. Whatever. The difference is when you go to play it after a restore of your system you need to reauthorize your computer and away you go. Again its not Apple's fault that you don't understand the most basic concept of computer tech.
PS- If your hard drive is crashing THAT often might I suggest you invest more then $100 in a drive that can stand some G's. And if its a desktop and even a remotely modern system setup a disk mirror.
That is *explicitly* part of the law. I don't understand why this law is never quoted correctly, including by lawyers. Here is the portion of the law in question: http://www.law.cornell.edu/uscode/17/usc_sec_17_00001201----000-.html
It seems like all anybody ever reads is paragraph (A). There are other paragraphs! Keep reading.
The only way the MPAA can make the argument that one copy is illegal is to also make the argument that fair use doesn't exist. And that's *also* explicitly part of copyright law.
(c) Other Rights, Etc., Not Affected.?(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
I don't know how much more explicit the law can be.
Why? If you break anything else you own, you don't get it replaced by the manufacturer. If you drop a light bulb and it breaks, you don't get a new one. Personally, the whole "back-up" concern has always confused me. People want to make copies of every movie they own onto a hard drive, JUST IN CASE something bad might happen to the disc? Try keeping them in the case when you aren't using them. The only DVDs I've ever managed to scratch are xbox360 discs, which has been proven to have a drive that scratches discs in the early models.
Sorry Hollywood, if I am buying your overpriced DVD, I am going to make a digital copy of it for whatever PMP use I see fit. I am not going to buy a movie TWICE just to get an included digital copy for a higher price than the plain old basic DVD. Example, The Dark Knight, single DVD on sale first week, $14.96, with digital copy, $22.96. Thus buying a movie twice for something I can do for free.
Why can't I designate my DVD as the "backup" and the INSTALLATION I make on my computer as the "active" copy. That's how I use them, after all. Every DVD is INSTALLED on my mac mini server and played throughout the house via front row, and the DVD is simply there as a backup, in case my HDs die (happened once).
This is how you buy software. You buy the ARCHIVE, and INSTALL that archive to use. You don't use the original file.
DVDs, because they can be used directly, are being treated as one thing only by the MPAA. But I use it in another way, the archive paradigm. And even according to the MPAA, that's fair...
"The only backup copy Congress envisioned was archival, that you would never use until such time when your main computer wasn't working..."
That's EXACTLY what the original DVD is in this case. Never use it until such time as the main computer isn't working. If someone at REAL is reading this, the MPAA just shot themselves in the foot a few times...
I own a rifle for target shooting, does that mean I shouldn't be able to own it because some people use it to commit murder?
On the other side, consumers want and desire to use the material that they have LICENSED (you do not purchase the content of a DVD, you own the medium, but not the content, read your license) independent of time and location (i.e. put it on their ipod, their portable DVD, their media furnace, whatever) and will adopt new technologies faster than the laws and/or the studios can move. Clearly a consumer desire and something that the studios, if they were listening to th eir customers, would do.
Would we all be sitting here ******** about this if the studios told us that for every DVD that we purchased, we could download from their web site two or three digital copies to be used in portable players or furnaces for $1.00? Nope, but that's pandora's box for them.
In the end, I have no idea if Real is in violation of the DMCA or if they have violated their license for CSS. (which allows them to legitimately decript the content on a DVD) I really don't care. They are innovating and solving a problem that their customers and the customers of the studios want.
The solution here lies not in laws or lawsuits, but in the studios realizing that by treating their customers as criminals, they are damaging their businesses long term. The music industry has finally woken up to this fact and has agreed that they can build a strong DRM-free business. The movie industry needs to wake up and ENABLE the technologists to deliver innovative ways to view content, not stifle it.
But long term, if the studios don't embrace the technology, it will run them into the ground. Consumers will clamor for a solution, and if a "well respected US company" can't give it to them, then the hacking underground will.
I've also worked for Hollywood producers. When i was at Universal, I was routinely asked to bootleg things for the executives. They steal software, they steal music, they steal movies. They have no respect for copyright, as they consider it "fair use" for doing their business, or some such nonsense.
This is RAMPANT in Hollywood. So bad that studios have had to police the Oscar Screeners they give out due to copying and sales. So excuse me, MPAA, unless your own people stop taking "fair use" liberties, please don't claim that honest citizens who simply want to have a more convenient way to watch the movie they already paid for are somehow stealing.
As REAL clearly points out, studios could include serial numbers or other identification that tells the computer this is a rental. They could also include a registration mechanism that requires you to register the DVD before you transfer it to your computer. REAL would be willing to work with you on this. But by failing to provide such mechanisms, you can't then argue that your poorly implemented copy protection trumps fair use when you could fix it to allow for fair use.
I think you and the OP are dancing around the truth.
The disk is nothing but data. The key decrypts the data. However you can still copy the encrpted data. If you make an ISO of a DVD and the copy is exact, nothing is circumvented. Mount it and now you have handshake to unlock the data inside the ISO file. The handshake may fail because you also copied the copy protection.
To sell a DVD drive, the drive manufacturer also has to be CSS licensee. They choose the drive manufacturer membership category. This grants them the rights to make and sell DVD drives that can read movie DVDs but it also places upon them some restrictions, namely, that their DVD drives will conform to the CSS specifications. For a DVD drive to be conforming, it must refuse to grant access to certain parts of a movie DVD unless and until the software that wants to read the data completes a handshake with the drive called CSS Authentication.
My point is, you can't tell there's more data on the disc that you're not getting (unless you know just what to look for.) But once you authenticate, you will discover there is more data.
You are an idiot. In Linux everything is a file, the monitor, keyboard, the hard drive itself and the partitions, and yes the DVD. Reading the DVD is no different then reading a text file. The same code you use to open and read a text file is identical to that of the DVD.
You read the disk, encrpyted data and all, and burn it to a disk. No encryption was circumvented at all.
Because you can. If the laser can touch it, I can read it. I don't care what the data is, when I watch the movie, libdvdcss decrypts it. You don't need the key to copy it. That is why copy protection is a joke, because the key has to be on the disk. You need something running in the OS to enforce the DRM garbage, and Linux doesn't do that.
Are you aware that CSS is amateur hour to the extreme? About 8 short lines of perl cracked it.
Why is it shills are always so ignorant?
I don't know why I am responding to this moron.
I know the size of the disk. I can read 1 MB at a time or 4 GB at a time. Where there is no data is easy to determine(\x00-although I doubt you know what that is), but I can keep reading until get the end of the file(ie the end of the disk.) I now have the exact byte stream of the DVD saved on a disk.
You seem to think that a disk can actually hide anything? It can't hide any of the bytes, just their meaning, but only XINE needs to know its meaning. To hide the presence of bytes, you need to run a program or have hardware do it. Neither of which can be done on a disk you moron.
- by datum226 May 21, 2009 2:29 PM PDT
- How about simple basic "People Power" concept. Do NOT buy movies. You want lower prices? You want them to stop bullying you? STOP buying their products. Use netflix or blockbuster. After months of not buying prices will be much lower and they will stop complaining about copyrights laws. Use your consumer power.
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- by UpajOs May 22, 2009 8:15 AM PDT
- I agree. My purchases of music and movies has fallen to near-zero in recent years. Funny, how my desire to buy those products correlates inversely with the RIAA's and MPAA's stepped-up drive to prosecute individuals for perceived "piracy". The MPAA may prevail in the courts, but the film producers and distributors will eventually pay the price in the market. This will only get fixed when the industry realizes that lawyers are only trained to find problems, not fix them. Let the engineers solve the problems and tell the lawyers to take a break and go fishing, golfing, or whatever.
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- by Sam Papelbon May 24, 2009 4:45 PM PDT
- but how much does the MPAA get per movie rental? i would assume they get some cut of it. renting could result in them getting more money.
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