DMCA Muscle Kills DVD Copying, for Real

via: Wired

Those awaiting a legitimate method to duplicate DVDs for personal use will likely have to wait even longer, perhaps forever, after RealNetworks tossed in the white towel and abandoned its litigation on the matter.

RealNetworks spent almost two years in a legal battle with the Motion Picture Association of America, which sued the Seattle company to block the sale of its DVD-copying software and hardware –- generally known as RealDVD. The company said late Wednesday it’s dropping its appeal of an August federal court decision that declared RealDVD an illegal violation of the Digital Millennium Copyright Act of 1998.

The act, which the Hollywood studios strongly lobbied for, prohibits the circumvention of encryption technology. DVDs are encrypted with what is known as the Content Scramble System, and DVD players must secure a license to play discs. RealDVD, U.S. District Judge Marilyn Hall Patel ruled, circumvents the CSS technology designed to prevent copying and is therefore a breach of the CSS license.

The litigation cost RealNetworks millions of dollars, including $4.5 million to reimburse the MPAA for its legal costs. The outcome cost Rob Glaser, RealNetworks’ CEO, his job.

Most important, RealNetworks’ admitted defeat solidifies the DMCA’s power – and leaves in its wake a legal and political vacuum: There is no active movement to legalize the duplication of DVDs under the DMCA, and every attempt to do so has failed.

For the moment, consumers will have to opt for underground services like Handbreak and others to copy their DVDs — a practice whose legality is questionable under the Patel’s ruling. Pirating and sharing movies on illicit BitTorrent sites is also available, but clearly unlawful under the copyright act.

In the end, there is no legitimate method to copy ones DVD, even children’s DVDs that are often scratched by their juvenile owners.

Copying DVDs amounts to “theft,” the MPAA’s general counsel, Daniel Mandil, said Wednesday. And RealNetworks’ white flag has emboldened the movie studios’ litigation arm, which Mandil said would “vigorously pursue companies that attempt to bring these illegal circumvention products and devices to market.”

By suing RealNetworks in 2008, the Hollywood studios showed they feared losing control of the DVD as the music industry did with the CD.

It’s OK to copy music from CDs, for example, and place it in an iPod. Yet, it’s illegal to do the same with a DVD. When it comes to the DVD, there’s not even a question of fair use allowed under copyright law.

As it turns out, the DMCA protects the DVD but not the CD.

Hollywood lobbied hard for the DMCA, in part to produce the DVD. The studios were savvy enough to have seen how easy it was to duplicate the CD, which was not encrypted. Attempts to lace CDs with Digital Rights Management had failed.

But the DVD was different from the CD. It was born with encryption, now called the Content Scramble System. It is designed to prevent duplication. Under the DMCA, gadgets and software allowing duplication of encryption-protected works are prohibited.

Judge Patel, in her ruling in the RealNetworks case, said “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.”

Patel, however, added some doublespeak: “Fair use can never be an affirmative defense to the act of gaining unauthorized access” — a simple way of saying it was illegal to hack into the encryption to make a copy.

Patel’s decision virtually mirrored the 2004 ruling by another federal judge declaring as illegal the DVD-copying software produced by 321 Studios. The difference between the two cases was that RealNetworks secured a Content Scramble System license, and claimed a loophole in the license allowed its RealDVD software to make hard-drive or thumb-drive backup copies of movies.

Judge Patel did not buy that argument.

That alleged loophole, however, is being litigated by Kaleidescape, a California company that sells high-end, home DVD-duplicating hardware that reached the market after a California judge ruled the CSS-licensing loophole indeed allowed a copying device.

But a California appeals court didn’t see it that way, and last year reversed the decision, which is on appeal to the California Supreme Court. Judging by RealNetworks’ white flag, the outcome is obvious.