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Judge Rules Against RealDVD 407

Posted by Soulskill
from the another-one-bites-the-dust dept.
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.'"
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Judge Rules Against RealDVD

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  • by old_skul (566766) on Wednesday August 12, 2009 @09:43AM (#29037357) Journal
    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.
  • by elrous0 (869638) * on Wednesday August 12, 2009 @09:45AM (#29037387)

    So it's perfectly legal for customers to make their own backup copies of media, just as long as it's impossible for them to do. God, I love modern IP law!

    Well, I guess everyone could go get a programming degree and write their own copying software. Or we could just break the law (since the law at this point has turned almost 100% of the citizens of the world into lawbreakers already, in one form or another).

    And before any of you jump in to point out that the DMCA is just a U.S. thing, you had better keep in mind that the DMCA is just the U.S. implementation of the WIPO COpyright Treaty [wikipedia.org], so these types of court cases are probably in the pipeline for your country soon too!

  • Repeal the DMCA! (Score:5, Insightful)

    by FlyingBishop (1293238) on Wednesday August 12, 2009 @09:45AM (#29037399)

    It's an affront to fair use. The courts however, have acted in the obviously correct manner. The DMCA is very clear, and leaves no wiggle room. It was designed very carefully to ensure it would prevent people from using any unauthorized software with DVDs.

    Fortunately, this does not yet affect my ability to read DVDs under Linux.

  • Innovation (Score:5, Insightful)

    by whisper_jeff (680366) on Wednesday August 12, 2009 @09:45AM (#29037405)
    It's nice to see laws that are encouraging innovation in the tech industry.

    Oh. Wait...
  • So... (Score:4, Insightful)

    by jeffshoaf (611794) * on Wednesday August 12, 2009 @09:46AM (#29037411)
    Its sort of like a lot of drugs - its not illegal to take 'em, but its illegal to buy, sell, possess, or be under their influence. With DVDs, its legal to make a copy for backup, but its illegal to create a means of making that backup.
  • by Evardsson (959228) on Wednesday August 12, 2009 @09:52AM (#29037483) Homepage
    FTA: '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.'

    Yes, the law says you can make and keep a backup copy of your DVD. But since the law also says that making or delivering a tool to do that is illegal, what are consumers expected to do?* Not everyone can afford to hire Superman to come over for the evening to burn backup DVDs with his laser vision. (Not to mention, he gets bored and starts flipping bits for the hell of it.)

    *BTW: consumers are expected to buy the same DVDs multiple times as they get scratched up, left on a windowsill to warp by your nephew or chewed up by your dog, That's what consumers are expected to do.
  • by Em Emalb (452530) <ememalb AT gmail DOT com> on Wednesday August 12, 2009 @09:52AM (#29037487) Homepage Journal

    Actually, it was. It showed a fundamental understanding of the law and how it pertained to the ruling she made. She got it right. It sucks, and hard, but she got it 100% right.

    The judge's ruling is bound by the current law. It doesn't matter if she thinks it's stupid or accurate, she's bound by it and gave the ruling that she was bound to.

  • The problem is... (Score:2, Insightful)

    by dbet (1607261) on Wednesday August 12, 2009 @09:53AM (#29037505)
    Judges are not held accountable for their own bullshit. We just have to collectively hope they are fair, similar to dictators or kings. If they ruin lives, oh well.
  • by Anonymous Coward on Wednesday August 12, 2009 @09:54AM (#29037517)

    Who says that any law has to be fair or just?

    All laws are the result of compromise among the concerned parties favoring the party that has the most influence - whether it's money (big corps) or a very vocal group (religious conservatives).

  • by KingSkippus (799657) * on Wednesday August 12, 2009 @09:56AM (#29037553) Homepage Journal

    The courts however, have acted in the obviously correct manner.

    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.

    Unfortunately, it sounds to me like the courts are siding with the MPAA, that protection of content is more important than fair use. It's a shame, really. I'm not sure that the judge understands that this is about more than just Real trying to sell a product, it's about upholding fair use laws that protect the "little guy" from an oppressive industry.

    Once fair use laws are precedented out of existence, what's next? Will copyright law (which, let's not kid ourselves, is what the DMCA is just a front for) override our right to make a parody of something? Our right to tell our buddies who won the football game last night? How long until the industry decides that the whole pesky free speech and freedom of expression things are encroaching upon their profits and must be overturned as well?

  • by halber_mensch (851834) on Wednesday August 12, 2009 @09:58AM (#29037607)

    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.

    If the film industry doesn't want to deal with viewers' pesky "fair use" rights, then really they should not distribute their films on any media and then they could have the fine grained control they want. After a few months of being in the red they will come back to their senses and realize that maybe their customers are important to their well-being after all.

  • by Ciarang (967337) on Wednesday August 12, 2009 @09:59AM (#29037619)

    Well, I guess everyone could go get a programming degree and write their own copying software.

    It's much simpler than that. Just don't buy the pesky things in the first place.

  • Stop making sense (Score:1, Insightful)

    by Anonymous Coward on Wednesday August 12, 2009 @10:02AM (#29037663)

    You should know by now that the content of the actual law is not relevant--only how much or how little /. posters like it!

    You're obviously correct, by the way. The law may be an ass, but it's not a judge's job to kick that particular ass. If you don't like the law (and this one is supremely stupid), go change your lawmakers.

  • by ShadowRangerRIT (1301549) on Wednesday August 12, 2009 @10:02AM (#29037675)
    Yeah, but they wanted a test case against a private company with real money and little public support. As soon as a Linux distributor has enough money to be worth the bother, expect to see either:
    1. libcss2 to be removed from their repositories
    2. The company to reincorporate overseas to avoid DMCA (only possible for smaller companies)
    3. Lawsuits

    Of course, it doesn't help that RealDVD is more accessible to consumers, and takes the easy "wizard" approach of doing a single task well. libcss is not a special purpose ripping program, even if it enables that sort of functionality. RealDVD is.

  • by AtomicJake (795218) on Wednesday August 12, 2009 @10:03AM (#29037683)

    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.

    I fully agree to your reasoning. But I think that the only real consequence is: Do not buy any movie, music, software that is distributed on DRM "protected" media.

    This behavior, btw, may over time maybe also change the offer.

  • by neowolf (173735) on Wednesday August 12, 2009 @10:04AM (#29037697)
    Agreed. I hate RealNetworks too for the same reasons, but I was hoping they would win this. Consumers have lost a big one here...

    It's sad really- DRM and things like this make me think twice (or more) before going to the movie theater or buying a DVD. I don't want to support companies like Sony anymore. If I go on a business trip- I want to be able to watch movies I PAID for on my laptop, without having to use the costly (battery-wise) DVD drive or carry bulky DVDs. I also now want to watch movies on my netbook- which doesn't have a DVD drive at all. In any case- I am talking about DVDs that I PAID for!

    This really has nothing to do with piracy- it is pure greed on the part of a handful of media companies. They aren't content with you paying once or twice to watch a movie (in theater and on DVD). The want you to pay 3 or more times for the SAME movie, just to get it in different formats you should be able to do yourself- DVD, Blu-Ray, Digital, Online.

    Want another example of their greed in action- check out the recent news about how they are applying the screws to Red Box. At least I have to give Sony credit for negotiating with them, while the others refuse. I'm sure Red Box got screwed somehow in the deal anyway, but at least they can still rent out Sony's releases.
  • by Emerssso (865009) on Wednesday August 12, 2009 @10:08AM (#29037741)

    Judges are not held accountable for their own bullshit. We just have to collectively hope they are fair, similar to dictators or kings. If they ruin lives, oh well.

    What? As I understand it, a judge's purpose is to decide whether or not an individual (corporate or otherwise) has broken a law, not to legislate from the bench. Your statement makes no sense. This judge stated that her decision was based on the *laws* put in place by the legislature. Take your bitterness to your *elected* local Congressman, not the judge who has to muck around in the horseshit they spew and figure out what to do with it.

  • by the_macman (874383) on Wednesday August 12, 2009 @10:08AM (#29037745)

    I don't even know why people bother with the DMCA. It's US-only

     
    For the time being. Come back to me in 1-5 years. I guarantee other countries will have their own DMCA. Canada is next. Mark my words. You seriously underestimate the global influence the RIAA/MPAA have. Just look at Sweden. They were able to pressure the local authorities to raid TPB and bring them to court and pass wiretapping laws which allow authorities to pursue file sharers. Insane!
     
    The MPAA/RIAA will only lose influence when the American dollar finally takes a dump.

  • by DigiShaman (671371) on Wednesday August 12, 2009 @10:09AM (#29037755) Homepage

    At least, you can still possess it, for now.

    Heh, ya. Just like my guns...

  • by ShadowRangerRIT (1301549) on Wednesday August 12, 2009 @10:13AM (#29037825)
    You can't really fault the judge for this. It's bad law, but explicit legislation trumps common law. Fair use is common law, created by the judiciary. The DMCA is legislative, passed by Congress and signed by the President. Common law is law of the gaps; the DMCA closed most of the gap, and the judge has no choice but to abide by it. If the case ever makes it to the Supreme Court, they have some leeway in striking or reinterpreting parts of the law, but a low level judge has to follow precedent and adhere closely to the letter of the law.
  • by Jellybob (597204) on Wednesday August 12, 2009 @10:16AM (#29037867) Journal

    1) way cheaper (arn't they like 5 cents to make or something like that, being generous maybe even a whole dollar with the case)

    You appear to be confusing the cost to produce the disk, and the cost to produce it's contents, and what you're in fact being asked to pay for.

    Unless the DVD you buy is completely blank, it cost more then 5 cents to produce.

  • by betterunixthanunix (980855) on Wednesday August 12, 2009 @10:17AM (#29037875)
    Sadly, it would take mass numbers of consumers boycotting the most popular movies in order for this to have any effect. Most people do not actually care about this issue -- they do not care about their right to make a backup copy because they do not make backup copies, and they do not see this as having broader implications. The MPAA knows this, and that is why they continue to bully people who do care.
  • by mrbcs (737902) on Wednesday August 12, 2009 @10:19AM (#29037889)

    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.

    I want to copy it on to my mediacenter pc so I can play it on any pc in my house. I also can't stand those ads at the beginning of the dvd. I don't need to see their damn warning for the thousandth time either.

  • by Desler (1608317) on Wednesday August 12, 2009 @10:19AM (#29037897)

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

    The law doesn't make any provision against obtaining the tool. The DMCA criminalizes the production and distribution of the tool to bypass copyright protections. Practically, it means you can only obtain a tool from people breaking the law.

  • Simple Solution (Score:2, Insightful)

    by Anonymous Coward on Wednesday August 12, 2009 @10:21AM (#29037927)

    Stop buying movies that have anything to do with the MPAA. Stop going to movies at the theatres too...unless it's an independent film. While I'm ranting, stop buying anything musicwise associated with the RIAA. This site [boycott-riaa.com] can help you find out who to boycott.

    Furthermore, reject the purchase of any media (music, movies, games) that utilize DRM. Don't even check-out these materials from your local library--for those lucky enough to have a library that offers music, movies, and software. While you are at it, if you have cable, shut it off othewise you're still giving money to these quasi-criminals.

    Don't even go to network television websites (or Hulu, etc.) to watch programs. They are getting ad revenue from advertisers everytime you go. This includes watching movie trailers anywhere that posts adverts. Yahoo! Movies comes to mind.

    Stop downloading ringtones from (insert your favorite band here) as if they are associated with the RIAA, they're likely getting royalties.

    Bottom line: vote with your damn wallet. I can't stress that enough. VOTE WITH YOUR WALLET. Support indepedent artists. Support independent film. Support your local public radio and television stations. Let's make the dinosaurs of big media the extinct creatures they should be.

  • From the decision:

    However, the reach of the DMCA is vast and it does not allow courts the discretion to make this assessment and render a value judgment untethered from the language of the statute. In the words of Justice Cardozo, âoe[l]aws are not to be sacrificed by courts on the assumption that legislation is the play of whim and fancy.â People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 62 (1920).The court is bound by the DMCA provisions at issue, even if it determines the extent to which innovative technologies realize their future potential.

    Basically, she's saying that Congress wrote this law, and it's not unconstitutional, so she can't strike it down. If you want to change it, contact your legislator. Don't biatch at her.

  • by AdmiralXyz (1378985) on Wednesday August 12, 2009 @10:25AM (#29037971)

    Judges are not held accountable for their own bullshit. We just have to collectively hope they are fair, similar to dictators or kings. If they ruin lives, oh well.

    This is wrong, wrong, wrong. The purpose of judges is to uphold the law. This is true even citizens think the law sucks. Personally I think it sucks that the law prevents me from walking into Wal-Mart and grabbing all the money I can from the cash registers, but even if the judge agrees with me, I'm going to be prosecuted.

    Whether you agree with the it or not, the DMCA is extremely clear that RealDVD is illegal. There is no ambiguity in this case. As a result, the judge really had no choice but to enforce this ruling.

    Yes, the DMCA is retarded. Yes, the ruling implies that we have the right to make backups of our DVDs but not the means to make those backups, which makes no fucking sense. But decisions like that are not the domain of judges, nor should they be, unless the law is unconstitutional, which the DMCA, despite its many flaws, is not. Judges exist to enforce the laws that Congress passes. If you think the laws suck, your legislators are the ones you should be griping about. The judge made the right call here.

  • by brainboyz (114458) on Wednesday August 12, 2009 @10:27AM (#29038003) Homepage

    Or from another country where such programs are not illegal.

  • by Desler (1608317) on Wednesday August 12, 2009 @10:30AM (#29038027)

    Nice doublespeak there, Marilyn, but a right that you have no way to exercise does not exist.

    But Fair Use isn't a right. Fair Use only exists because Congress codified exceptions in the 1976 Copyright Act to allow people to do certain things without them being a violation of copyright. Congress can revoke such fair use at any time they want since they created such exemptions in the first place.

  • The judge's ruling is bound by the current law.

    If we wanted the laws to be followed to the letter, we would have coded up an Judge system in Lisp by now.

    But, we don't want that. We want Judges to make judgments based on both the letter and the spirit of the law. (This applies in sentencing as well as judgments by the way.) We want Judges to be able to spot discrepancies, loopholes and injustices in our current laws and rule against them where it is right to do so.

    If you tell me it's legal to rake my lawn, but you then say it's illegal for anyone to give me gardening tools, do you really think that your position is just and logical. It doesn't take a fool to see what is going on here. The law and the legal system are being strained to breaking point, and that's good for neither justice or respect for the rule of law.

    Why should anyone respect and uphold a legal system that twists itself into contradictions and connives to deny people the very rights its says they are entitled to? How can anyone go into a courtroom, expecting justice, when they know that the court has no interest in that. When they know the court only cares about an ironclad, rigid and dogmatic interpretation of any rag of a law our legislature see fit to pass; Or worse, only cares about a political interpretation of the law and their rulings within society at large?

    In such an environment, why should anyone petition the courts for justice instead of making their own? Our contemporary cinema hails a masked vigilante who goes about beating criminals in the dead of night. What does that say about our respect for the legal system? Judges need to stop being automatons that parse legalease, and start doing their jobs, i.e. delivering justice.

  • by Bob9113 (14996) on Wednesday August 12, 2009 @10:54AM (#29038419) Homepage

    Actually, it was. It showed a fundamental understanding of the law and how it pertained to the ruling she made. She got it right. It sucks, and hard, but she got it 100% right.

    There has to be a different answer than this. There must be a part of the government whose job it is to make sure law is rational. That seems like the sort of thing for the judicial to do. If she is not at fault then the entire judicial system is. This is not a rational law, and a system which does not correct irrational laws is broken.

    As to her culpability: Did she state in her opinion that the law is irrational and should be changed but cannot be because the system is broken? Did she identify any possible path for the irrational law to be changed? If not, she is complicit in the broken system and should be judged just as harshly as the system itself. When the gatekeepers of justice fail to seek justice in favor of blind obedience to the letter of an unjust law, they are failing in their sworn duty to the nation.

  • by schon (31600) on Wednesday August 12, 2009 @10:59AM (#29038489)

    This really has nothing to do with piracy- it is pure greed on the part of a handful of media companies. They aren't content with you paying once or twice to watch a movie (in theater and on DVD). The want you to pay 3 or more times for the SAME movie

    It's more than that - the anti-circumvention provision of the DMCA are expressly designed to eliminate fair use (as we see here) and "work around" the copyright expiration clause of the US Constitution.

    Think about it - barring any more copyright extension, all of your DVDs will become public domain in 100 years or so... so you would be free to copy them, except that you're prohibited from owning or creating anything that actually could copy them.

  • by Anonymous Coward on Wednesday August 12, 2009 @10:59AM (#29038503)

    Except the part where nobody's forcing you to read slashdot. Go away. Do your job.

  • by IBBoard (1128019) on Wednesday August 12, 2009 @11:03AM (#29038541) Homepage

    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

    My computer can copy bits from a CD, making it a device or tool that permits me (a customer) to copy copyrighted stuff. Does that make my computer illegal as well (if I ever hauled it to America)?

  • by NormalVisual (565491) on Wednesday August 12, 2009 @11:05AM (#29038591)
    consumers are expected to buy the same DVDs multiple times as they get scratched up, left on a windowsill to warp by your nephew or chewed up by your dog, That's what consumers are expected to do.

    And that's because they're consumers and not citizens. Citizens take an interest in what goes on in their society beyond the sound bite du jour, and the DMCA and absurd copyright extension laws would never have survived in the face of an active citizenry.
  • It's a democracy (Score:5, Insightful)

    by wilder_card (774631) on Wednesday August 12, 2009 @11:29AM (#29038913)
    It's said that in a democracy people get the government they deserve. Until we start voting these issues, the lobbyists will own the law.
  • by MagicMerlin (576324) on Wednesday August 12, 2009 @11:38AM (#29039057)
    so...it's legal and acceptable to have copies, you just can't make them...
  • Outlaws (Score:3, Insightful)

    by Stenchwarrior (1335051) on Wednesday August 12, 2009 @11:54AM (#29039317)
    If you outlaw copyright-protected-media backup software, only outlaws will have copyright-protected-media backup software.
  • by gnick (1211984) on Wednesday August 12, 2009 @12:07PM (#29039551) Homepage

    Writing a program is not manufacturing.

    Not to support the DMCA crap, but yes. I haven't checked Merrian-Webster on the subject, but under any competent interpretation, yes it is...

  • by geekoid (135745) <dadinportland@ya ... m minus math_god> on Wednesday August 12, 2009 @12:35PM (#29040013) Homepage Journal

    of DVD players is illegal? I mean they are specifically designed to circumvent DVD encryption.

  • Yes, that's what she is saying. What she didn't say is that the law fundamentally conflicts with previously established and adjudicated law.

    Because it doesn't. A judge's job, when faced with two constitutional, but conflicting, statutes is to attempt to find a reading that is consistent with both. It's not to invalidate one, merely because the other came first. In fact, if anything, the later statute (the DMCA, in 1998) would be read as superceding the earlier statute (17 USC 107, in 1976).

    But if the judge can find a reading consistent with both, then she has to take it, even if it's not the optimal. Judges can't write laws.

    Here, the judge found a reading consistent with both: consumers have the protection of fair use as a defense to copyright infringement and manufacturers can't make or sell devices that circumvent copy-protection and encryption. These are logically consistent, even if it makes it really tough for consumers to make backups. You don't have a right to a backup - you have a right to use section 107 as a defense if you're sued. If we have a right to make a backup copy of a DVD, how can it then be illegal to make and distribute the means to back it up? Notwithstanding that you don't have "a right to make a backup copy", it's legal to possess an automatic weapon but not legal to make or sell them. It's legal to possess oxycontin, but illegal to sell it without a prescription. It's legal to possess bongs, but illegal to sell them. The law is not required to make everything easy.

    In Miranda, the Supreme court established that a right is useless, and therefore abridged, if there is no means to execute that right.

    This is Slashdot, and you're trying to claim that you have no way of making a backup of a DVD unless you use the RealNetwork's utility? Really?

    The media companies have every legal right to make it as hard as possible for me to copy their material; but Congress does not have the power to enforce that business decision under the color of law.

    They're not enforcing a business decision. They're saying "it's illegal to sell a protection-circumvention mechanism". Same sort of thing as requiring licensing for buying lockpicks.

  • by cycle003 (980723) on Wednesday August 12, 2009 @01:19PM (#29040697)
    I think the more proper analogy, if you buy into the RIAA's philosophy, would be renting a car. If the rental car dies, you'll get another one because you are paying for the use of the car, not the actual car. Now, if the RIAA wants to sell us the media, we should be able to make a copy of it in case of failure. If we are licensing the use of it, they should replace it. They shouldn't be able to have it both ways.
  • by Hatta (162192) * on Wednesday August 12, 2009 @02:43PM (#29041971) Journal

    Rights exist independently of law. The right to property for instance. I would also argue that there is a right to do math. The DMCA violates both of those rights.

  • by elrous0 (869638) * on Wednesday August 12, 2009 @03:44PM (#29042879)

    What the U.S. needs to do is amend the law so that you don't have the stupidity of having fair use rights, but not being able to (legally) exercise them the moment someone applies some copy protection.

    Fat chance of that when our only two political parties both support a heavy-handed stance on IP law. One party (Democrats) is beholden to Hollywood, and so they support tough IP laws. The other party (Republicans) and beholden to big business so THEY support tough IP laws too. Basically, consumers and normal citizens (those of us without lobbying money) get absolutely *NO* say in this "democracy."

Programmers do it bit by bit.

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