I would like to examine the recent lawsuit filed by the MPAA against Real Networks for their RealDVD software. Sales of the software, which copies DVDs onto users' hard drives, have been suspended by court order. I will argue that such software does not violate the DMCA as the MPAA claims it does by situating it in relation to other copying technologies and the court decisions surrounding them. This will require research into the court briefs related to new media formats, as well as consumers' rights to have backup copies of the works they purchase. My goal is to show how RealDVD and similar softwares are legal, just like their predecessors in CD burners and VCRs.

In the case of 20th Century Fox v. Cablevision, Fox argued that Cablevision's remote storage for DVR'd movies and programs infringed on their copyright because Cablevision was the party making the copies, not the copyright holders, Cablevision's subscribers. The court ruled that because the subscribers initiated the recording by pressing a button on their remotes, they were the ones making the copies. The court also ruled that because the copies could only be replayed by the subscribers that made them, such replays were not public performances.

 

RealDVD has legitimate non-infringing uses. Any copies made of copyrighted material, such as DVDs that consumers have purchased, Are made by the consumers themselves. At the same time, the DRM imposed on copies made with RealDVD allows users of the software to make a single copy on their personal computer, thereby precluding public performance of the work.

In the case of the DVD CCA v. Kaleidescape, the DVD CCA attempted to sue Kaleidescape for violating the licensing contract for the CSS encryption technology by creating a product that copied DVDs. However, the judge ruled that the license agreement did not preclude the copying of DVD content. Since Kaleidescape was a DVD CCA icense holder, copyright issues did not come into play.

 

RealNetworks, like Kaleidescape, is a DVD CCA license holder. If the precedent of the Kaleidescape case holds, the MPAA's copyright suit collapses because RealNetwork's use falls within the bounds of their license agreement with the DVD CCA.

In the case of the RIAA v. Diamond Multimedia, the RIAA argued that Diamond infringed on its copyrights by allowing users to create digital copies of copyrighted material to be played back on a portable digital music player. The court ruled that Diamond merely facilitated a space-shift for consumers, dervied from the Betamax case time-shift, and that the use was personal and non-commercial.

 

RealNetworks does essentially the same thing for DVDs that Diamond did for audio CDs. The only difference is that Diamond's copies were for a portable device, while RealNetworks' copies stay on the users personal computer. Again, the attached DRM of RealDVD prevents any kind of commerical use.

The temporary restraining order (TRO) application filed by DVD-CCA and motion picture studios against Real Networks seeks to halt the sale or distribution of the RealDVD software. It argues that the software circumvents the Content Scramble System (CSS) that is used on DVDs to protect the copyrighted content, and is therefore illegal. It also states that the software infringes on current and future markets for digital distribution for the studios.

 

This document is important, as it is really the reason for my paper topic. It outlines the basic argument of the MPAA against RealDVD, thereby providing an outline for what I need to cover in my own analysis of the issue.

The Sony v. Universal, or Betamax case, tackled the issue of home video recording devices and their status in regard to copyright infringement. The Supreme Court eventually ruled that time shifting television programs, or watching them at a time other than when they were originally broadcast, is a fair use. The ruling also asserted that such home recording devices were legal as long as they had significant non-infringing uses.

 

RealDVD can be argued to have similar time shifting capabilities, in this case, allowing consumers to watch DVDs at a time other than when they are in their computer. The copy protection applied to the copies made with RealDVD further prevents infringing uses such as unauthorized distribution.

The fair use doctrine sets forth guidelines for determining whether a particular use of a copyrighted material is fair use. The four factors of fair use are analyzed when determining a fair use, including the purpose and character of the use, as well as the effect of the use upon the potential market or value of the copyrighted work.

 

RealDVD creates a single backup copy for owners of DVDs. While this should not have any effect of DVD sales, it does remove the market for digital downloads offered with DVD purchases for a nominal price.

This portion of the Digital Millenium Copyright Act (DMCA) covers the circumvention of copyright protection systems. Anyone who manufactures or distributes a technology that has the primary purpose of circumventing copyright protection technologies is in violation of the DMCA.

 

Were RealNetworks not a DVD CCA liscensee, they would be in violation of the DMCA. However, the possession of the license effectively excludes RealNetworks from any litigation pursued by the MPAA under the DMCA.

In his article, Fred von Lohmann discusses what he believes to be the real reasons the MPAA is so vehemently opposed to the release of RealDVD. He writes that there are already many software packages that are free to download and do not include DRM that can accomplish the same tasks as RealDVD, and therefore the lawsuit of the MPAA is not really about piracy. He argues the real reason for the lawsuit is that the MPAA wants to how consumers space-shift or format-shift their works. The MPAA would like to exploit digital downloads and managed copies for additional revenue, rather than allow them for free as fair uses.

 

This argument would actually be the MPAA's best chance of winning a lawsuit against RealNetworks. By arguing that DVDs and digital copies reside in seperate and distinct markets -- with various studios already having such purchase and download systems in place, it should not be too difficult -- RealNetworks would be in violation of the fair use doctrine for affecting the value and market for the work.

In the case of Paramount v. Load N Go, the movie studio claimed that Load N Go infringed on its copyright by making digital copies of Paramount's DVDs and loading them onto personal video players. The personal video players, along with the original DVDs whose content was loaded on them, were then sold to end-users. Load N Go also violated the DMCA by circumventing the CSS encryption technology included on the DVDs.

 

In this case, Load N Go was the entity making the copies of the copyrighted works and the proceeding to sell them to end-users. This would qualify their copying as a commercial use. In the case of RealDVD, the consumer is the one making the copy, so whether he or she owns the DVD they are copying or not is irrelevant for RealNetworks because they are not involved. Also, as previously stated, RealNetworks is a DVD CCA licensee, so they cannot be prosecuted for a DMCA violation as Load N Go could.

The counterclaim filed by RealNetworks against the MPAA and DVD-CCA, outlines the opposite side of the MPAA's argument. Real argues that it is a licenscee of the DVD-CCA and therefore is not circumventing the security encryption. Real goes on to argue that its software creates a fair use copy following the Sony Betamax ruling. Finally, the software's own copy protection will impede piracy according to Real.

 

This document provides Real's justification for its release of the RealDVD software. It briefly describes their own methodology for determining the legality of their product. This is integral to my own work since I will be arguing for its legality as well.