SAN FRANCISCO--The film industry once again successfully convinced U.S District Marilyn Patel to boot the public from the courtroom during the RealDVD hearing on Wednesday.
Attorneys from the DVD Copy Control Association, the group formed to protect DVDs from piracy, informed Patel that they wanted the courtroom closed during the testimony that would discuss anything the DVD-CCA considered a trade secret.
Roger Myers, representing CNET News, told Patel that he objected to the closing of the court.
Myers told Patel he wanted to propose an alternative. He asked the court to limit testimony in court that didn't include any trade secrets. He then suggested that testimony about the secrets be done on video and submitted under seal. Such a procedure would not hold up the court or reveal trade secrets. Anybody who still wanted to object to the sealed testimony could do so and she could rule on those objections.
"The issue of whether there is a trade secret should have briefed in advanced," said Myers, from the law firm of Holme Roberts & Owen. "They should have filed a motion to close. There may be a trade secret but it also may mean that the court is being closed to protect something that doesn't exist."
On Friday, the DVD-CCA convinced Patel that testimony would include details about the technology used to encrypt DVDs. Patel ordered everyone who wasn't bound by a non-disclosure agreement to leave the courtroom. But before that occurred, Patel asked that as much testimony that didn't include sensitive information be given.
Much of the DVD-CCA's encryption code can easily be found online or even on T-shirts and ties. The DVD-CCA once filed a lawsuit against programmer Jon Johansen, who wrote a DVD-descrambling utility that circumvented CSS--a suit that had the unintended consequence of publicizing the code widely.
But the DVD-CCA's lawyers said much of their code is not publicly available and any disclosure of it would cause economic harm.
"I think it's very clear from the licensing with respect to specifications the indepth nature of those specifications," Patel told Myers. "There are trade secrets and there is economic value to them...I'm not going to stop the court proceedings now, not at this late hour."
Patel once said she would only keep the court sealed for the testimony on what DVD-CCA claimed were trade secrets.
Update 9 p.m.: To include more on Glaser's comments about efforts to prevent RealDVD from being used to pirate movies.
SAN FRANCISCO--Rob Glaser, founder and CEO of RealNetworks, acknowledged in federal court on Tuesday that his company's software, RealDVD, could be used to make unauthorized copies of DVD rentals.
But Glaser said that the company does all that it can to "steer people away from that," including limiting playback of copies to five separate machines. Moreover, he said the problem could be eliminated if the major movie studios helped create a way to identify a movie as a rental.
Rob Glaser poses for a photo following his testimony in the RealDVD case.
(Credit: Greg Sandoval/CNET Networks)"We would need cooperation from the studios to mark (DVDs) some way differently so we would then operate on (the discs) in a different way," Glaser testified.
Glaser's testimony promises to be the dramatic highpoint in the dispute between Real and the Motion Pictures Association of America over RealDVD. The two parties presented their cases before U.S. District Judge Marilyn Patel.
RealDVD enables consumers to create copies of DVDs and store them on hard drives. The largest film studios filed a lawsuit last fall accusing Real of copyright violations and breach of contract. Real argues that the studios are using litigation to derail a potential competitor. The MPAA says Real is trying to make money off of the studios content without paying for it.
At stake in the trial is Real's efforts to replace DVD players with its own player, called Facet, which is equipped with a hard drive. For the studios, a Real victory in the case could mean Hollywood would lose at least some control over who creates copies of films.
'Just say no'
Under questioning by Real's lawyers, Glaser tried to dispel MPAA assertions that RealDVD was created to help people pirate films. The studios have often cited an Associated Press report in which Glaser allegedly was "winking" to those who illegally download movies.
"If you want to steal," Glaser was quoted by the AP, "we remind you what the rules are and we discourage you from doing it, but we're not your nanny."
Glaser denied that quote was insincere. He noted that the company's FAQ on RealDVD has strong language that warns consumers not to copy movies that they don't own.
At this point, the judge got some in the courtroom to snickering when she said: "Do you think this will be more effective than 'Don't Say No?'"
The judge was apparently referring to the anti-drug campaign launched by the Reagan administration that was often ridiculed by skeptics who called it halfhearted and ineffective.
Glaser explained to the judge that the situations weren't the same. Real wasn't trying to convince teenagers not to experiment with drugs. The product was designed to appeal to responsible adults.
As far as those who don't have any compunction about obtaining unauthorized content , they wouldn't be interested in the $30 RealDVD because there's lots of illegal software available on the Web that offers more features for free.
Glaser is set to again take the stand when the hearing resumes Wednesday morning.
Updated at 12:56 p.m. PDT to clarify MPAA's arguments.
The film industry in court Tuesday tried to show a federal judge that the software known as RealDVD entrusts its creator, RealNetworks, with the job of protecting digital film copies from piracy.
U.S. District Judge Marilyn Patel resumed hearing testimony in the legal dispute between the largest movie studios and Real. The Motion Picture Association of America claimed in a lawsuit filed last fall that the company's RealDVD software, which enables people to copy DVDs and store them to a hard drive, violates copyright law. Patel halted sales of RealDVD last fall.
Robert Schumann, an expert on securing DVDs who was called to testify by the MPAA, told Patel that RealDVD introduces a set of copy protection schemes for the copies made by RealDVD. The software's copy controls can be altered or removed all together from Real's servers in the form of a software update. Schumann told Patel that those limits could easily be removed all together by buy removing just one line of code.
There is no reason for Real to do such a thing. Schumann was responding to questions from Rohit Singla, an MPAA attorney, who asked Schumann about hypothetical situations apparently to illustrate that Real had, without authorization, assumed the responsibility of protecting the film industry's content and that posed certain risks to Hollywood.
First, Schumann testified that an unlimited number of film copies can be made from a single DVD using RealDVD.
Schumann demonstrated that film copies could be made and moved to a thumb drive. Schumann told the judge, however, that RealDVD's copy protections would limit any copy of the film to play on a maximum of five devices licensed presumably by a RealDVD owner. RealNetworks has long argued that the encryption technology it uses to protect digital copies made by RealDVD is superior to what's found on DVDs.
Singla asked Schumann how easy would it be for Real to change the limit on the number of computers licensed to play a film. Could Real, for example, issue a software update that could raise the limit from five to 50 computers or to remove the limits completely? Schumann said the changes would be simple.
Singla then asked what it would take for Real to enable copies to play on millions of different devices or any device. Schumann said the change would require "essentially removing one line of code." Such a scenario, regardless of how unlikely, could result in the distribution of an unlimited number of unauthorized film copies.
Real attorneys tried to stop the line of questioning and raised an objection, arguing that discussing what RealDVD could do was irrelevant and asked the judge to stick to with RealDVD's current capabilities. But Patel wanted to hear the testimony and overruled the objection.
The MPAA continues to drum the idea that RealDVD is a piracy threat. Throughout the dispute, Patel has been most animated when discussing copyright issues and unauthorized copies. When she ruled to keep a temporary restraining order in place in October, she worried that RealDVD could lead to mass copying saying "it's impossible to bring back copies once they're out in the market."
The question of whether RealDVD is a security threat to the film industry remains at issue, though it's generally recognized that there is a glut of software available online that enables anyone to make unauthorized copies of DVDs. The question that appears to have the most relevance to the case is whether RealDVD circumvents the encryption technology found on DVDs. A circumvention would violate the Digital Millennium Copyright Act.
Schumann was the first person to testify in Tuesday's hearing and has not yet had a chance to respond. The first witness expected to testify for Real, sometimes later in the afternoon, will be the company's outspoken CEO, Rob Glaser.
Note: I'll be filing updates throughout the hearing.
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