May 11, 2007 8:35 AM PDT
Apple, others draw legal threat over media players
Media Rights Technologies and its digital radio subsidiary BlueBeat.com said in a press release Thursday that it had issued cease and desist letters to the high-tech titans. It argues that the companies have manufactured billions of copies of Windows Vista, Adobe Flash Player, Real Player and Apple's iTunes and iPod "without regard for the DMCA or the rights of American intellectual property owners."
DMCA refers to the Digital Millennium Copyright Act, a controversial 1998 law that generally makes it illegal to circumvent technological protection measures that control access to copyrighted works. The law says circumvent means "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate or impair a technological measure, without the authority of the copyright owner."
MRT, based in Santa Cruz, Calif., argues that its X1 SeCure Recording Control technology has been "proven effective" as such a protective measure by plugging the "digital hole" that allows even copy-protected music streams, when played back, to be captured and potentially copied. The company says that because the companies are avoiding use of its purportedly effective product, they are violating the DMCA.
"We've given these four companies 10 days to talk to us and work out a solution, or we will go into federal court and file action and seek an injunction to remove the infringing products from the marketplace," CEO Hank Risan said in a phone interview Friday. According to the MRT, the companies in question are responsible for 98 percent of the market's media players, which are in turn used by CNN, National Public Radio, Clear Channel, MySpace, Yahoo, YouTube and others.
RealNetworks spokesman Matt Graves said he hadn't yet seen the letter, but it appeared to be a ploy by a "desperate company" to get its product licensed. "That's a rather novel approach to business development," he said in an e-mail interview Friday.
A Microsoft representative said Friday that the company had not yet seen the letter and could not comment. Representatives from Apple and Adobe did not immediately respond to requests for comment.
A cease and desist letter is just a preliminary step that could precede a formal lawsuit. Recipients aren't legally required to respond to them. They can also choose to petition a judge for a declaratory judgment, which effectively says the companies are not violating the claims made by the letter.
Some lawyers said they believed MRT had offered a creative, at best, interpretation of the law that would likely not stand up in court.
"It looks to me like a play for publicity," Jessica Litman, a University of Michigan Law School professor who specializes in digital copyright issues, said in an e-mail interview. "I'm no fan of the DMCA, but it doesn't impose liability simply because some product could be redesigned to implement a technological protection scheme but its makers decline to do so."
She also said the targeted companies would likely not be liable because a section of the DMCA says that consumer electronics, telecommunications or computing products are not required to be designed so as to "provide for a response to any particular technological measure."
Randy Lipsitz, a partner in the intellectual property and technology group at Kramer Levin in New York, said the most reasonable way to interpret the word "avoid" in the DMCA is that it would cover "a technical, logical measure that's present in the work," as opposed to forcing companies to buy a third-party product.
"This one's out there," he said of the arguments in a telephone interview. "I don't know how far it's going to go."
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