RealNetworks' day in court ends in loss

Jake Widman
Wednesday, 12 August 2009 23:59

IT Industry - Development

In her decision (available as PDF download ), Judge Patel termed "legal legerdemain" Real's argument that since RealDVD performs the necessary unlocking and decryption actions when it first copies a DVD, it is not required to perform them on the copy.

In a statement that will chill those who hoped that some of the more onerous conditions of the DMCA might be lifted, she also wrote that the famous Sony decision that established the right of consumers to record and timeshift television shows (and the right of vendors to sell devices for doing so) no longer applies.

"Sony involved video cassette recorders and copyrighted television broadcasts in a pre-digital era and its 'substantial noninfringing use' reasoning has no application to DMCA claims," she wrote.

Ironically -- as Judge Patel points out -- this was the same argument Real used to win its 2000 case against Streambox. The judge was moved to label Real's contradictory position this time "bumptious and futile."

She also reaffirmed one of the aspects of the DMCA that is most offensive to digital rights advocates.

The Act makes it illegal to remove copy protection from content even if the content itself is legally available for fair use.

In the injunction, Judge Patel wrote, "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."

In other words, the consumer is entitled to have a copy, but they're not entitled to buy a device that makes the copy.

For Judge Patel's conclusion, see Page 3.