RealNetworks DVD Copier Nixed

A federal judge has barred RealNetworks from selling its DVD-copying software, ruling that the technology violates Hollywood studios' copyrights and the licensing agreement RealNetworks has with the studios' copyright-protection group.

U.S. District Judge Marilyn Hall Patel issued the preliminary injunction against RealNetworks on Tuesday in San Francisco. The ruling prevents RealNetworks from selling its RealDVD software and any future products using the technology until its legality is determined in a trial.

The Motion Picture Association of America sued RealNetworks in November 2008. The DVD Copy Control Association, which licenses Hollywood-sanctioned copyright-protection technology, later joined the suit, claiming RealNetworks violated its DVD CCA license. RealNetworks builds on the anti-piracy technology for the security in RealDVD.

Patel's decision means RealNetworks is prohibited from selling its software for copying movie DVDs to computer hardware. Although RealDVD prevents content from being distributed, Patel decided the software still was in violation of the DVD CCA license, which prohibits any copying without the permission of copyright holders. In addition, Patel ruled that RealDVD violates the Digital Millenium Copyright Act.

"RealDVD makes a permanent copy of copyrighted DVD content and by doing so breaches its CSS (content scramble system) License Agreement with DVD CCA and circumvents a technological measure that effectively controls access to or copying of the studios' copyrighted content on DVDs," Patel's 57-page decision said.

RealNetworks said in a statement that it was "disappointed" with the ruling, but said a decision whether to appeal was pending. "We have just received the judge's detailed ruling and are reviewing it," the company said. "After we have done so fully, we'll determine our course of action and will have more to say at that time." Meanwhile, the DVD-CCA said it was "grateful for Judge Patel's thorough review and thoughtful decision in this matter."

"The association, which represents the interests of the personal computer, consumer electronics, and content industries as well as DVD consumers, is committed to enabling high-quality entertainment to be available for use at home and elsewhere," the group said in an e-mailed statement. "The ability to make that entertainment available depends upon a set of guidelines upon which all participants in these industries can rely."

The Electronic Frontier Foundation, a nonprofit consumer-rights group, said Patel's ruling was troubling in the restrictions it places on the legal concept of fair use, which is the right for consumers to copy digital content for personal use.

"The heart of Judge Patel's ruling is her interpretation of the DVD-CCA license agreement, and since large portions of those agreements remain confidential, it is difficult to evaluate the merits of her reasoning," the EFF said in its blog. "However, she does make the troubling suggestions that fair use is never a defense when you circumvent an 'access control' like encryption on DVDs."

The EFF went on to say that the ruling is likely to send a "chilling message to any innovator interested in delivering new products" that interact with the DVDs people own. In addition, the decision is unlikely to make a dent in the widespread availability of free, unauthorized DVD rippers available on the Web.

"In other words, as we've said before, this case has nothing to do with 'piracy,' and everything to do with Hollywood using the DMCA to control the pace and nature of innovation for DVDs, to the detriment of those who legitimately buy their DVDs," the EFF said.

If RealNetworks appeals the ruling, then it will likely take at least a year to get RealDVD on the market, if it was to win in an appellate court.

Patel was the presiding judge in the record industry's lawsuit against file-sharing site Napster. In 2000, she ruled that Napster was responsible for policing its network for copyrighted material, a landmark decision that was upheld on appeal. The ruling effectively led to the demise of the site.

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