Kaleidescape loses; DVD copying falls again

Kaleidescape, a company that enables users to copy DVDs and store them on its system, lost an important court decision Wednesday.

(Credit: Kaleidescape)

Update 4:15 p.m.: To include comments from Kaleidescape.

For the second time in two days, Hollywood has racked up another major legal victory over DVD-copying devices the studios charge are illegal.

Kaleidescape, which had won a rare court victory over the film industry two years ago, saw a California appeals court overturn the ruling on Wednesday. The decision comes a day after a federal court placed a preliminary injunction on the sale of RealDVD. Both Kaleidescape and RealDVD enable users to make digital copies of movies and store them to a hard drive.

In 2004, Kaleidescape was accused in a lawsuit by the DVD Copy Control Association (DVD CCA), of agreeing to abide by the terms of the Content Scramble System (CSS) license, which it said forbade the copying of DVDs.

Kaleidescape argued there was nothing in the license that banned copying and Judge Leslie C. Nichols agreed in a ruling issued in March 2007. RealNetworks, which makes RealDVD, also argued that there was nothing in the DVD CSS license that prevented them from designing a DVD-copying feature.

"We're obviously disappointed by the court's decision"" said Michael Malcolm, Kaleidescape's CEO. "Our plan is to go to the Supreme Court of California. We're confident that were not in breach of our contract with the DVDCCA and until then our products remain fully legal and licensed."

The film industry has always maintained that the Digital Millennium Copyright Act of 1998 was designed to protect innovation as well as the rights of content creators. A balance was sought and in pursuit of that, provisions were made to protect antipiracy controls, such as DVD CSS, from being circumvented.

"This is yet another example of the way the DMCA harms innovation without doing anything to stop what the studios call piracy. This enables the studios to take consumers' fair use rights and sell them back to them one DVD at a time."

-- Fred von Lohmann, senior attorney, Electronic Frontier Foundation

Apparently, the only good news to come out of this for those in favor of fair use is that U.S. District Judge Marilyn Hall Patel, in her RealDVD decision, did leave open the question of whether consumers have the legal right to make copies of their DVDs for their own personal use.

"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," Patel wrote, "a federal law (the DMCA) has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies."

What this says to consumers is that if you want to make a digital backup of a DVD, no problem. Go ahead. But beware if you build a tool that actually helps people make those copies. In that case you're breaking the law.

The one-two punch in the courts is likely to rock the technology community. Techies had already begun bitterly criticizing the decision by Patel to halt sales of RealDVD and the Kaleidescape-like player from Real, code named Facet.

Fred von Lohmann, senior attorney for the Electronic Frontier Foundation, an advocacy group for Internet users and technology firms, said late Tuesday evening that Patel's decision is a setback for innovators and consumers.

"This is yet another example of the way the DMCA harms innovation without doing anything to stop what the studios call piracy," von Lohmann said. "This enables the studios to take consumers' fair use rights and sell them back to them one DVD at a time.

"And if you're an innovator," he continued, "where DVDs are concerned, it's very dangerous to innovate without asking the studios' permission first."

In a statement, the DVD CCA said: "The Appellate Court recognized what we have maintained all along, Kaleidescape had agreed to a complete contract that mandated certain requirements with which devices must conform in order to be Content Scramble System (CSS) compliant. We look forward to returning to the trial court to obtain an injunction requiring Kaleidescape to comply with its contractual obligations under the CSS License Agreement and Specifications."

[malynj]

At this point I've pretty much given up on hoping for a good resolution for DVD restorage. The DVD CCA and studios are squashing what coud have helped keep DVDs alive. Without this, its moving towards Netflix streaming, or just not viewing the content after release. Why bother buying the DVD, if you can't organize your library digitally and cut down the clutter.

[ewgdsg]

i agree, what is the big diff. from copying a CD to comp. to copying a DVD? If its just for personal use, whats wrong with it?

[i-arman]

Music companies (read: RIAA) want you copying CDs even less than movie companies (read: MPAA) want you to copy DVDs, but there is already enough backlash against them, so they aren't going after peopel for ripping CDs to MP3, especially since CDs aren't copy protected. Or weren't, at any rate; now you can find CDs that come with copy protection. Bleh.

So, why don't they want you to copy it? Because they want movies and music to be like spoons and hammers. If you use it in three places, you need to buy three (spoons, hammers, copies of the same song, etc.). If you want your music on your CD, your iPod, and your computer, they want to be able to sell you the iPod version, the CD version, and the computer version. There's nothing wrong with it - they just want to sell you the same song three times.

[subslug]

At this point there are so many other methods around to copy DVDs that this barely gets a rise out of me anymore. The MPAA is fighting their own drug war IMO, they're never really going to win. They just like to show people once in a while who the big bully on the block is, then all the tiny people just run scurrying back into their basements to develop another chunk of code that works even better than the last one did.

I think the US is the only ones that really play by their rules aren't they?

[protagonistic]

I am not sure who is more clueless here, the MPAA or the judge. Stripping all protection from a movie is dead simple and requires just two free open source programs. To paraphrase the Gecko, "It is so simple even a Windows user can do it". No offense intended to the Windows users in here. I believe both programs have Windows versions. I know vlc does.

Anyway, these idiots must be in complete denial. The genie is out of the bottle and it is not going back in. Memo to the MPAA: if I want to make a backup copy of a movie I bought I will do so. If you don't like it, tough.

[El_Segfaulto]

No offense taken, although realistically isn't it Apple that prides itself on being idiot-proof?

If you're looking for the software to rip to AVI a simple google search of gordian knot will yield interesting results...

[Thad Boyd]

"What this says to consumers is that if you want to make a digital backup of a DVD, no problem. Go ahead. But beware if you build a tool that actually helps people make those copies. In that case you're breaking the law."

So wait. Copying DVD's is legal...but writing software CAPABLE of copying DVD's is not?

Or is it legal for personal use? Which would mean that, sure you can copy your DVD's...as long as you're a member of the statistically insignificant portion of the population that has the technical knowhow to write the ripping software yourself.

Or, if I use deCSS to rip a DVD to my HTPC, who is legally liable? I didn't code the software myself, but I used it only for a personal copy. And it's already been ruled that the software is legal in its country of origin.

The whole thing seems awfully arbitrary, doesn't it?

[Lerianis3]

Well, arbitrary is what you get when the judges are basically ignoring the relevant laws and fair use provisions of said laws and doing things based on their own personal justifications and the bribes that they have gotten from the MPAA and RIAA.
It's simply time to realize that the DMCA was a FREAKING BAD LAW that goes against numerous constitutional protections and the "First Sale" doctrine (which has in it that you CAN backup anything that you buy, period and done with).

[MagiMamoru]

Just a few days ago I had to tell a customer he had no legal way to copy his DVD for personal use on his laptop while traveling. He would have to carry his DVD collection with him. I gathered he traveled alot.

[BigGuns149]

If he were within the US you are correct. I remember I sold laptops for a better part of two years and I know lots of people would frequently ask about that and were surprised that there was no legal means of backing up DVDs. I think a big part of it is in the pre-DMCA era we regularly backup VHS tapes so I can see why someone unaware of DMCA would presume that DVDs could be backed up with ease like VHS tapes of yore.

[FellowConspirator]

It's interesting that the judge noted that people have a right to make a copy of the DVD, but there's a law that is preventing the exercise of that right on other terms. So, if a publisher abridges that right, have they committed a copyright violation? After all, copyright is a social contract that's a give and take. Part of the deal is that in exchange for copyright protection the public gets a promise that the work eventually enters the public domain, and also the reasonable expectation of fair use of the work. It seems to me that preventing fair use constitutes a breach of the terms of copyright. Either the publisher's in violation of copyright, or the copyright is forfeit... So, which is it, and how come nobody is suing over it?

[mbenedict]

The judge did NOT say that people have a right to make a copy of a (protected) DVD. The judge said that people may have a right, but did not make a ruling on the issue, which is actually not relevant to the case at hand.

"Fair use" is not a constitutional right. It is a limited right. There is no law that says a creator must not perform any action that makes fair use difficult (or even impossible) to implement. While copyright might be a "social contract", it is governed by legislation, which specifically allows for technical protections. Congress (and President Clinton) knew the implications this has on "fair use" and decided to pass the law the way it is.

There is a balance of rights between content creators and end users. Like it or not, what Congress did with the DMCA is to shift this balance of rights towards the content creators. Until the DMCA is amended or eliminated, circumventing technical copyright protection is illegal.

[myles taylor]

It's already been proven that DRM and copyright laws don't stop pirating and the only people they hurt are the law-abiding citizens who can't copy the DVD's they legally own to their computer. The music and movie industries are just beating their heads against a brick wall with this. They need to embrace it. Create a legal way to share your media and people will pay for it. Just like iTunes proved that if people had an option to pay for music, they would.

[Police_States_of_America]

consumers can't copy movies to their own hard drives. consumers never owned the movies they bought. since thats the case i skip a step and dont buy them. i know where i can get movies in the format of my choosing anyway and let me promise you that its not some garbage mpeg2 format which they make dvds with.

[jachamp]

What they are saying is that you should have to go out and buy a seperate copy for every device you own and to replace the original when it wears out/get stolen.

They don't want you to save anything. They want you to spend and waste your money on this horrifically bad movies and bad music. They don't want you to have any rights as a consumer.

What you need to do is quit giving entertainment companies your money. It's entertainment for crying out loud. You don't need any of it and it serves no purpose but to waste your time and empty your wallet.

[Brian Hudkins]

Judge Patel appears to be opening a legal can of worms. This interpretation of the DMCA means that companies can be found guilty ffor making products that might be used illegally. What's next - cars that can't exceed the posted speed limit?

Imagine that the same rationale is used to ban the manufacture of guns. Possession is legal but manufacture could be made illegal? The NRA will go nuts.

[BtmnHatesRbn]

Oh, whatever. "Any" DVD can be "cloned". It's all digital data in the end. However, I just stopped buying DVDs cold-turkey once I got both a Netflix and Blockbuster account. I just have them send me a ton of rentals and I just watch a movie once or twice.

[Sausagebiscuit]

Netflix was the reason I stopped buying / ripping DVDs too. It's just too easy to fill up the queue and let them do all the work. Most of the movies aren't worth buying on DVD anyway.

[donsms]

Hey! Wake up manufactures of DVD copy machines! The only way your going to get a product to market and make a profit with it is to change the DMCA law. Judge Patel has clearly stated thats the only way,the DMCA must be ammended before products like these will be lawfully allowed.So,stop making these things and go lobby Congress and get the law changed! Yeah it`s hard work but it`s the only way!

[Chebwa]

1) Install DVDFab.
2) Obtain DVD.
3) Rip DVD to now cheap 1 to 2 terrabyte hard drive.
4) Point Windows 7's Media Center to folder containing rips.
5) Watch DVDs anytime you want.

Or you could wait for the courts to make up their minds on how all of this works.

[donsms]

It`s not the courts that will make up anyones mind,but the law as presently written.You need to petition congress to change the DMCA law.No court in this country is going to allow DVD copying as long as the DMCA continues in it`s present form.Why is it so difficult for people to understand this?,change the DMCA law to allow copying in one form or another or every copying device that comes to market will be shot down immediately by Hollywood.