What to expect from the RealDVD decision

The future of RealDVD, and possibly a consumer's right to create backup copies of their DVDs, now rests in the hands of Marilyn Hall Patel.

Bart Williams, the attorney who helped lead the MPAA's case.

(Credit: Munger, Tolles & Olson)

On Thursday, the U.S. district judge wrapped up a preliminary injunction hearing in the RealDVD case. Last fall, RealNetworks began selling RealDVD, the software that duplicates DVDs and stores copies to a hard drive. The Motion Picture Association of America, the trade group representing the six largest film studios, filed a lawsuit claiming RealDVD violated copyright law.

In September, Patel placed a temporary restraining order on sales of RealDVD, saying she had serious questions about the software's potential to be used to pirate films. Now, she must decide whether to continue to keep the software off shelves. Even if she does, a final decision about whether RealDVD is legal or not would be decided later by a jury (Here are the reasons I think Patel will rule against Real).

Patel's ruling on the injunction will have serious consequences on the case. Real CEO Rob Glaser testified during the hearing that delaying sales of RealDVD and Facet, the DVD player from Real that copies as well as plays DVDs, could be disastrous for the development of the products. Glaser told Patel that it's very expensive to keep engineering teams together. The company has already spent nearly $6 million, mostly on legal fees, developing the products.

He also noted that it would put Real behind in offering the public a means to backup their DVDs. The studios already offer digital copies of films that they tuck into purchases of DVDs, although consumers must pay extra.

Patel must now determine whether the studios have demonstrated a probability to win in a trial based on the merits of its arguments and has proven the possibility it could suffer irreparable harm. The injunction hearing acts as a preview of the trial. It is possible, however, for one side to lose in the hearing and win the overall trial.

If Real loses, the company can appeal Patel's decision to the U.S Court of Appeals for the Ninth Circuit. That's what the original Napster did when Patel sided with the recording industry in 2000 and placed an injunction on the peer-to-peer service. In that case, the appeals court agreed with Patel and ruled against Napster.

Besides the possible impact to Real's business model, the case could, if Real wins, set a landmark decision that could free consumers to copy their DVDs. Real has said it believes consumers have a fair-use right to backup their movie discs. A Real victory would also enable technology companies to create new DVD copying and storage devices.

Here's what is at stake, according to two well-known attorneys with opposing views:

On the issue of fair use, Fred von Lohmann of the Electronic Frontier Foundation said:

"The important question is will consumers have the same kind of personal use rights that they have had for their compact discs? Will we have the same kind of innovation for DVDs that we've seen for digital music? Obviously, consumers have gotten used to the idea of putting music on computers and listening to it on devices like iPods. Consumers are now facing the possibility that those same kind of actions will be declared illegal if the MPAA has its way."

Ben Sheffner is a former copyright attorney for 20th Century Fox and is an outspoken proponent of copyright. According to him, a loss in this case could deal Hollywood a significant financial setback. He said:

"The studios feel that it's very important to make clear that copying DVDs is not permitted by the law. They believe that's the law now--and judging from how things went at the hearing--it appears that is how the law will remain. If it goes against the studios that would be a major blow and would open up the door to a lot more copying of DVDs and to more products that would facilitate copying. A victory won't really improve their situation but a loss would be very bad."

The good news about all this is that we may not have to wait too long for a ruling. Patel has a reputation for delivering relatively speedy decisions.

Reporter's notes: Real has hired some very able attorneys from the firm Wilson Sonsini to represent it. But should it go to trial, Real would do well to hire a lawyer with the same kind of charisma and courtroom presence as Bart Williams. He's the lawyer from Munger, Tolles & Olson who is representing the MPAA. I'm no legal expert, but I've got eyes and the judge appeared to be more engaged when Williams addressed her. He didn't drone on. He was well prepared and he simplified complex issues and technologies. Cases are supposed to be judged on facts but I'm guessing every advantage helps.

[pentest]

Am I the only one disgusted at the RIAA trying to enforce a law that exists solely because they paid for the 'law' to be passed?

[SIGHUP]

Me too. But since our legal system is the best legal system money can buy, I will put my money on the Copyright Cartel winner this case.

[unknown unknown]

Regardless of how the court rules nothing will change. People will continue to flout the DMCA, with products like DVDFab and others. Another pyrrhic victory copyright cartels and their anti-consumer BS.

[magicmaster]

Hollywood: "Sorry, you [consumers] can't back up the discs. It's your faults that discs got scratched. Buy new discs or we will bully you in the court."

What's next? Pay-per-Listening?
"Oops! It's your faults that you can't listen. Since we won't refund your hard-earning money, you must pay for another listening, or we will bully you in the court."

[SaturatedFats]

I understand this complaint about discs getting scratched, but how much of a problem is it, really? I have nearly 1,000 DVDs and hundreds of CDs as well. Some of my DVDs are 15 years old and many of the CDs are a quarter century. Anytime I've had problems trying to play a DVD or a CD, it's always been the player's fault. The darn DVD players (including the high-end models) are so shoddy they only seem to last a few years 'till they stop working. I'm on at least my 4th or 5th DVD player. But the discs themselves continue to work fine as soon as I get a new player. Then again, I'm pretty careful with my discs. I only handle them by the edges (a habit left over from the days of vinyl LPs), I put them back in their boxes when I'm done and, when my kids were little, I didn't let throw them around like Frisbees.

So what's this big deal about discs getting scratched? How does that happen? What are you guys doing with them and whose fault is that?

[pentest]

It doesn't matter whose fault it is. Making a backup is part of fair use, and the MPAA can just sit in the corner and cry about it.

[SaturatedFats]

Okay, but two points:

(a) The law's not on your side. DMCA says, yes, you have some fair use rights, but not if exercising them means you circumventing any copy protection.

(b) If there really isn't any serious problem with discs becoming unplayable due to scratches, then it sounds to me like the argument about wanting to make backups may be disingenuous. Is it really about wanting make backups or is it just a cover story (as the studios insist) for wanting to make free copies of stuff without having to pay for them?

(Yes, of course, I understand there might be circumstances, e.g., a fire or theft, where you lose your entire collection and where backups kept at another location might be helpful. But, otoh, there are other ways to recover in those situations, e.g., submitting a claim to your insurance company.)

[pentest]

DMCA is unconstitutional. Eventually it will be invalidated.

The DMCA explicitly permits fair use.

[pgeneste]

To SaturatedFats,
You must not have children, I have my CD/DVD set, and your right, but what about your KIDS disks, I almost never give the original to them, just a copy to use, gets damaged, no problem, burn another from the original. Fair use in my opinion! I paid for it, why can't I protect my investment, I don't know of any dvd players that you can LOCK the tray up.

[SaturatedFats]

No, I have kids. But when they were little, I actually acted as a parent. I didn't just turn them loose to let the TV set babysit them for me.

[slimj091]

"(a) The law's not on your side. DMCA says, yes, you have some fair use rights, but not if exercising them means you circumventing any copy protection."

whats the point of fair use rights when a special intrest group slap's code on product's of the companies they represent to prevent consumer's from exercising their fair use rights?

the only thing their copy protection does is punish consumers that legally bought their product instead of stealing it. for the people that obtain movies "illegaly" Css is a joke at best, and does absolutely nothing to deter them from stealing movies, because if they are going to steal a movie cracking the weak copy protection is an after thought.

so let see here

1. prevents law abiding people from making a reasonable amount of copies of a movie they legally bought, which is their right by law.

2. does absolutely nothing to stop people from illegaly obtaining movies.

yep.. it's good to know that the MPAA still have their priorities in order.

[dannosliwcd]

I agree that copy protection laws suck, but I think they do help work against piracy a little (though I don't think it really justifies their existence). America is lazy. So many people I meet think that if they can't learn something in less than 5 minutes, it's not worth the time or the effort in typing "google.com" in a browser. It takes about 6 minutes to learn how to copy a protected DVD, so this deters a lot of lazy cheapskates from illegally copying DVDs. So many decoding geniuses have made freely available 1-click-decode-reencode programs, you need only know how to navigate your operating system to get it done.

[russkeller]

Quick note about the comment that this would hurt "Hollywood." With the exception of nestolga what part exacrtly does "hollywood" play the motion picture buisnesss anymore? Think about it canada makes more movies than hollywood now. The MPAA has already destroyed itself hopfully this'll finish the job so someone compotent can offically take over.

[GlennAllen]

My right to decide how I play my DVDs for my enjoyment rests solely in *my* hands. Any member of the MPAA--or anyone else--who thinks differently can take it and stick it where the sun don't shine.