Audio Video News

In a curiously ambiguous ruling, a federal court has declared the RealDVD disc copying application illegal. However, the court also left open the possibility that copying DVDs for personal use may be legal in some circumstances under the copyright law's fair use doctrine.

The U.S. District Court in California ruled against the RealNetworks software on two grounds. First, it violates the Digital Millennium Copyright Act of 1998, which makes it illegal to defeat anti-copying technology. Second, it also violates the licensing agreement for CSS, the DVD format's copy-protection system. The judge rejected Real's defense that RealDVD was protected as fair use.

Even so, Judge Marilyn Patel did not issue a blanket condemnation of personal-use copying. In fact, she invoked the DMCA and the fair use doctrine in the same sentence when she stated: "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 response to the ruling, Real released a press release saying: "We are disappointed that a preliminary injunction has been placed on the sale of RealDVD. We have just received the Judge's detailed ruling and are reviewing it. After we have done so fully, we'll determine our course of action and will have more to say at that time." Whether the company plans to appeal was unnannounced at presstime.

The court decision elicited the following comment from Tom Moore, the attorney who represented Kaleidescape in its successful attempt to protect its video server product from a similar CSS-related legal shutdown: "In the Real DVD case, the issue is between fair use and abuse. America loves movies, and there are billions of DVDs in private hands that Americans have purchased inexpensively. Those consumers have a fair use right to protect their investment by putting a copy on a more durable medium, such as a hard disk drive.

He continues: "The studios' argument is that purchased DVDs and rented DVDs are exactly the same. As a consequence, a Real DVD user can not only copy his own DVDs, but also rent a DVD from Netflix, transfer a copy onto his hard disk drive and return the DVD to Netflix at a fraction of the cost of buying a DVD. The more cynical among us believe that the studios' argument is a smoke screen for their plan to sell us the same movies all over again. In other words, I own a VHS version of 'The Little Mermaid,' and I own the DVD of 'The Little Mermaid.' To get a hard disk drive version, Disney wants to sell me 'The Little Mermaid' via download."

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