RealDVD case ≠ the death of Fair Use

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Last April, when commenting on to the RealNetworks versus Media Giants case, I penned DVD Copying Case: Why You Should Care, I included these prescient words:

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.

And, as it turns out, that’s how it’s turned out. As predicted, Judge Patel ruled that RealNetworks had violated the terms of a signed DVD Copy Control Association agreement as well as provisions of the Digital Millennium Copyright Act. As in:

That Real may have initially gained lawful access to the CSS keys by entering into a CSS License Agreement does not mean that Real is thereby exculpated from DMCA liability forever more.


By designing and producing its RealDVD products for the purpose of removing various CSS protections, which effectively control access to a copyrighted work by scrambling DVD content and rendering it unusable and unplayable to the user, Real violates section 1201(a)(2) of the DMCA. Real cannot escape this liability merely because it is a CSS licensee and because RealDVD leaves CSS content encryption on the copied disks. RealDVD’s removal of other CSS protections required for authentication and bus encryption unequivocally circumvents this technology under the DMCA.


Real cannot use the CSS License Agreement as a sword to unlock, decrypt and descramble CSS content and then assert this right as a shield against a DMCA violation. CSS provides technological measures to safeguard against access to and reproduction of copyrighted video content, such as the Studios’ motion pictures, released on DVDs. Real does not implement and comply with the requirements and prohibitions set forth in the CSS License Agreement regarding copying. Accordingly, the RealDVD products circumvent CSS in violation of the copy control provision of the DMCA.

But she was unwilling to take on the Fair Use argument, preferring, instead, to pass the buck back to Congress, which started this mess with an unfocused DMCA. As in:

So while 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, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies…. In enacting the DMCA, Congress chose to strike a balance to combat piracy and maintain economic incentives to create. The balance embodied in a federal law is not something this court can disturb, absent a Constitutional violation not at issue here…. (“The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress… .”).

The takeaway for consumers being: Yes, there are circumstances under which you can make a backup copy of your media. We're not talking about that. We’re talking about the fact that it’s illegal for those within the jurisdiction of the DMCA to create tools to do the job. I don’t want to hear word one about tools created outside that jurisdiction. And if you’ve got a problem with any of this, take it up with Congress, I'm going to lunch.

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