RealNetworks would like to sell its $30 RealDVD application—an application that allows consumers to back up commercial DVDs to their computers’ hard drive for archival purposes. (These back up copies are still protected and can’t be burned to DVD.) The movie industry wants to maintain control of its content and argues that RealNetworks has breached a license to use CSS encryption (the form of copy-protection found on commercial DVDs) and is in violation of the Digital Millennium Copyright Act. The Motion Picture Association of America (MPAA) won a temporary injunction in October that prevents RealNetworks from selling RealDVD.)
While this may result in a narrow ruling—RealNetworks did or did not breach its CSS license—it has broad implications for the future of media distribution and copyright. The movie industry, like the music industry before it, wants complete control over its content and, therefore, hopes RealNetworks takes the fall. If digital copies must be made, they will be provided, at extra expense, by the movie companies in the form of special edition DVDs that contain bonus digital copies which can be played on computers and portable media devices such as the iPod. Or, of course, consumers are welcome to purchase digital copies directly from online retailers such as Amazon.com and the iTunes Store.
Unfortunately for the movie industry, that wall has already been breached. California-based Kaleidescape, makers of high-end media players, were sued by the DVD Copy Control Association (DCCA) over the company’s high-end media systems that can archive commercial DVDs to a hard drive. After a seven-day trial in 2007, Kaleidescape was judged to be in full compliance with the DCCA’s encryption license. RealNetworks is suggesting that if Kaleidescape can do it, why not them?
A less compelling argument, but one RealNetworks representatives might want to mention when it’s the company’s turn to stand before the judge, is that this train left the station long ago. Software to remove copy protection from commercial DVDs has been around for more than five years. A Google search (or search of Macworld.com, for that matter) will provide links to such software that’s free and not terribly difficult to use. And, unlike RealDVD, these applications completely strip copy-protection from DVDs. If someone were really interested in pirating and distributing the contents of commercial DVDs, RealDVD would not be the way to do it.
Fair Use advocates might also argue that there are certain conditions under which archival copies are allowed and, therefore, technology must exist to create such copies. Those supporting the Digital Millennium Copyright Act might counter that the DMCA trumps Fair Use.
And that’s what makes this case so important and interesting—once you purchase a hunk of media, is it or is it not yours to do with as you legally please? I fear, however, that we won’t learn the answer from this trial. I suspect that one reason we continue to see cases that focus on narrow issues such as whether Company X breached License Y is that no one really wants a final judgment on Fair Use versus the DMCA. There’s a lot at stake.
If Fair Use triumphs, the media companies fear they’ll go out of business because their wares will be pirated from one end of the world to the other. And if the DMCA wins the day, the Fair Use crowd believes they’ll be ground under The Man’s heel.
Will one San Francisco judge be willing to dip a toe in this legal morass?
In the case of Kaleidescape v. DCCA it’s happened before. I, for one, hope to see it happen again. My archived copy of Mary Poppins depends on it.