Judge Rules Against RealDVD

mattOzan writes "Judge Marilyn Hall Patel was unswayed by RealNetworks' defense of their product under the Fair Use Doctrine, as she declared RealDVD illegal and barred its distribution. As she said in her ruling, '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.' She also said RealNetworks was aware of the conflict between their agreement and their plans for the software: 'Real did not elect to return (or destroy, with appropriate certification) the CSS General Specifications after it received them, as Real had a right to do under the agreement... This behavior indicates that Real understood it to be bound by the CSS General Specifications as well as the other technical specifications received after execution of the CSS License Agreement.'"

Absolutely brilliant ruling Judge.

[0racle]

Yes, you're allowed to make backup copies of movies you own, but every tool that exists to allow you to exercise your right is illegal.

Handbrake, damnit.

[ZorinLynx]

Just use Handbrake. It's free, adds no DRM, and US law can't touch it because it's hosted outside the US.

I don't even know why people bother with the DMCA. It's US-only. Notice how all the fun cracking and releasing and such happens outside the US.

It only takes one person to rip the movie once. After that, copy protection is pointless.

No, Clearly a Horrible Anti-Fair Use Ruling

[eldavojohn]

While I hate RealNetworks and all it stands for, and will never forgive them for taking over online media with their crappy bloated players and codecs....I think I hate the movie industry just a little more. Especially Sony Pictures. I think the net effect (as usual) is that this sucks for consumers.

No, the net effect is that there is no possible way to exercise your right to a single backup of a DVD for your personal use. Despite the 2007 DVD Jukebox ruling [slashdot.org], every DVD copying solution [slashdot.org] seems to be illegal. So what you do not realize when you're purchasing DVDs is that they are not only effectively DRM'd, they ignore your right to fair use.

I'm interested in watching RealNetwork's antitrust claims against the industry [slashdot.org]. I could think of some very basic arguments to be used in that case. Hell, I think someone should take up the case of fair use violations against them.

When I buy a DVD, I want to be able to create a backup that I use and store the DVD in safe keeping. If they don't want me to do this, distribute your films on a more robust media. This ruling is down right horrible for consumers.

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Re:Handbrake, damnit.

[dlsmith]

Just use Handbrake. It's free, adds no DRM, and US law can't touch it because it's hosted outside the US

Actually, Handbrake is distributed without any DMCA-violating software. I don't know where it's hosted, but I don't think there's any legal impediment to distributing it in the U.S.

In order to read encrypted DVDs, Handbrake delegates to VNC, which users must download and install separately.

(I wonder if such an arrangement would really fly if it were tested by somebody like Real or Apple. It's probably too user-unfriendly and unsafe -- requiring your users to download a third-party piece of software which can't be legally distributed in the U.S. -- for anyone like that to try.)

Re:No, Clearly a Horrible Anti-Fair Use Ruling

[Rogerborg]

there is no possible way to exercise your right to a single backup of a DVD for your personal use

You can write your own tool to do it, you just can't obtain one or give it to anyone else.

Note carefully that I didn't say that makes any sense, but the letter of the law does allow each individual to create and use such a tool, purely for their own personal use.

Re:Repeal the DMCA!

[nomadic]

As I understand it, no, it's not so obvious. It seems to me that what we have are two laws that are coming into direct conflict with each other. One says that you can do something, and one says you can't. The issue at hand, the thing that these court cases are supposed to be settling, is which one has priority.

No, the courts don't have any discretion in deciding which law has priority; it is well settled that when two laws conflict, the later one controls.

Re:Absolutely brilliant ruling Judge.

[Anonymous Coward]

Patel was also the judge for A&M Records v Napster. Her history has been to interpret towards copyright owners wherever there was conflict in interpretation of existing statutes, and she similarly displayed a lack of understanding for technical systems during that case as well.

Re:Handbrake, damnit.

[morgan_greywolf]

In order to read encrypted DVDs, Handbrake delegates to VNC,

No. Handbrake will use libdvdcss, if it is available [handbrake.fr], on any platform but Windows. VLC is mentioned because libdvdcss comes with VLC 0.9x.

IOW, while Handbrake itself doesn't violate the DMCA, it can be used to violate the DMCA by adding a library that actively violates the DMCA.

Also, for GP: DMCA is most certainly not US only. Other countries have laws similar to the DMCA on the books.

Re:No, Clearly a Horrible Anti-Fair Use Ruling

[TejWC]

Then I guess this gallery [cmu.edu] should be useful for a lot of people.

Re:No, Clearly a Horrible Anti-Fair Use Ruling

[schon]

You can write your own tool to do it, you just can't obtain one or give it to anyone else.

As others have pointed out, this is incorrect. I thought I'd include the actual letter of the law here:

TITLE 17 > CHAPTER 12 > 1201 [cornell.edu]
  1201. Circumvention of copyright protection systems
(a) Violations Regarding Circumvention of Technological Measures.--
(1) (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

[...]

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

Writing one yourself would be considered "manufacturing".

Re:BitTorrent, the legal way of getting backup cop

[IBBoard]

Yes - in America. That's part of why Fedora doesn't include it but Suse does - Fedora is quite American-centric, while Suse has always been quite German-centric. Just because using libcss2 in the US is illegal to make use of "fair use" rights doesn't mean that it's illegal in the rest of the world ;)

Kaleidescape

[Anonymous Coward]

Didn't Kaleidescape win this same argument in 2007? See the Slashdot article: http://yro.slashdot.org/yro/07/04/29/1913251.shtml

How is the RealDVD case any different?

Re:Repeal the DMCA!

[MobyDisk]

Fair use does exist as a "right" according to the copyright act of 1976. [wikipedia.org]

Re:The problem is...

[Khelder]

I agree that the judge made only decision possible under current law.

However, I'd like to point out that fair use is statutory law:

http://www.law.cornell.edu/uscode/17/107.html [cornell.edu]

It's true that it has/leaves more room for interpretation by the courts than some statutes, but it's still based on statute.

Re:No

[cdrguru]

Uh, no, that is not correct.

CSS-protected DVDs have a title key which until the proper key is presented to the drive prevents you from copying protected sectors from the disc. So your dd command will fail when it gets to protected (aka scrambled) sectors.

Once you get the title key set correctly, the drive will then let you read all the sectors. The rest of the CSS protection involves encryption of those protected sectors. You could, in theory, put off that decryption operation until you went to play the material and just copy the encrypted sectors.

So you can copy without decryption but not unlocking access. Both are part of CSS protection and are therefore covered by DMCA. And the only way you get to find out how it works - legally - is through signing an agreement with the DVD Copy Control Authority, part of the DVD Forum. The big deal seems to be that Real violated their agreement with DVD CCA.

Re:No, Clearly a Horrible Anti-Fair Use Ruling

[schon]

Writing a program is not manufacturing.

Wow! Your flawless logic has convinced me! Now you just have to use that exact same argument to convince all the judges and lawyers who would say you're a complete fucking tool.

Dmitry Sklyarov was arrested for "manufacturing" software that could read ROT-13 encrypted PDFs. The software was distributed by someone else, but he got nailed for manufacturing. They only dropped the charges when he agreed to testify "against" his employer.

Re:No, Clearly a Horrible Anti-Fair Use Ruling

[TheRaven64]

To clarify, you can't make a usable bit-for-bit copy of a DVD on a DVD. You can make one on another medium. For example, if you have a Mac, you can use the bundled Disk Utility.app to create a disk image file from the DVD (you can use dd for the same thing, but Disk Utility is more pointy-clicky) and you can then play this with Apple's DVD Player.app (if it's mounted, then the userspace app can't tell the difference between it and a real DVD).

Re:No, Clearly a Horrible Anti-Fair Use Ruling

[mccabem]

Manufacturing pretty much means "the process of making something" whether by hand or machine. Writing a program would certainly seem to fit that definition.

Seems like the law contradicts itself if there is supposedly a Fair Use element to the law, yet no way to legally exercise said element.

Congress or SCotUS will need to straighten this out. I sadly have little confidence in either institution to do so honestly/properly.

-Matt