DVD Copying Case Focuses on 'Fair Use'

Submitted by MacRonin on April 26, 2009 - 1:58pm

DVD Copying Case Focuses on 'Fair Use': Via Threat Level.

SAN FRANCISCO – Hollywood studios told a federal judge here Friday that consumers have no right to make copies of their DVDs.

The U.S. courts, however, have never squarely answered whether that was true, a legal vacuum that might be answered in the Motion Picture Association of America's lawsuit against RealNetworks.

The MPAA said there was no fair use defense to copying personal CDs. The MPAA presented that argument as it demanded a federal judge to continue barring sales of a DVD copying software that RealNetworks briefly put on the market last year.  The MPAA also said RealDVD was based on the work of Ukrainian hackers.

The litigation represents Hollywood's worries that RealDVD, the software at issue, might ruin the market for encrypted DVDs, as piracy wrecked the market for CDs, which are not encrypted.

"One is not supposed to copy the DVD and that is exactly what RealDVD does," MPAA attorney Bart Williams told U.S. District Judge Marilyn Hall Patel in a packed courtroom. 

About 3,000 copies of RealDVD were sold last fall before Patel blocked distribution ahead of Friday's hearing, which is expected to conclude Wednesday.

Still, RealNetworks told Patel that the Hollywood studios were acting like a cartel and threatening to disrupt technologies that compete with the studios' latest marketing tool -- DigitalCopy. Under DigitalCopy, the studios sell DVDs along with a digital download of a movie.

Patel, however, did not seem to be buying RealNetworks' defense. "They have the copyright," Patel said. "That's the issue here right? They have the copyright.
They have the right to exclude."

Leo Cunningham, RealNetworks' attorney, said "our product will enhance" the value of DVDs, because it allows their owners to make backup copies that he said were protected under the "fair use doctrine" of copyright law.

"RealNetworks is a company that respects copyrights," he added.

The studios allege RealDVD circumvents technology designed to block copying. And under the Digital Millennium Copyright Act, there's no such thing as fair use.

The studios claim the RealDVD software violates the Content Scramble System, or CSS, that is licensed by the DVD Copy Control Association. RealNetworks, however, claims the contract does not prevent backup copying of DVDs, an assertion the association said was ludicrous.

"That's why my client is called the Copy Control Association," association attorney Reginald Steer told Patel.

Cunningham, however, said RealDVD was "designed to prevent piracy."

Copies of DVDs can only be played on up to five hard drives that have RealDVD software downloaded to it. And the copies, he said, cannot be copied.

The studios allege that, if the judge legitimizes RealDVD, it would be an announcement that copying DVDs was legal.

"We're not changing any attitudes about that," Don Scott, another RealNetworks attorney said. "We enhance the security of the DVD."

Photo: spadgy

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