Although the MPAA isn't directly involved in the licensing of DVD decryption technology, there can be no question they are behind the very existence of CSS encryption, which makes it illegal to rip DVDs in the US.
In their filing, RealNetworks lawyers wrote "The CSS agreement is being used to extend a legally granted monopoly over content into separate markets – to prevent competition from technologies that would allow a copy of content for fair use purposes. But the making of a copy of a studio DVD is authorized fair use under the Copyright Act."
The biggest hurdle to most fair use arguments is the very nature of fair use. It is not, as many people believe, a right given to the public.
In reality it's a set of exceptions to the exclusive rights granted copyright holders by law. It's a subtle, but very important, distinction.
The problem is largely one of vague wording in the fair use clause of US copyright law. Except for the few cases where specific uses are mentioned, judges are compelled to assume it can't contradict other laws, including the DMCA's anti-circumvention language.
In other words the DMCA must be interpreted in a way that allows copyright holders to nullify fair use. Ultimately the real question to decide this case will be whether the studios are using their monopoly on movie distribution to stifle legal innovation.
Ironically that's exactly what many copyright scholars see behind the Betamax lawsuit in the 1970s. MCA (the parent company of Universal Pictures at that time) was preparing to introduce a product called DiscoVision. You probably know it better as LaserDisc.
The big difference between the Betamax case and this one is the license RealNetworks has entered into with the DVD-CCA. Also of note is RealDVD's use of encryption on copies.
Like Kaleidescape, a company which successfully defended their DVD server product from a DVD-CCA lawsuit in 2007, RealNetworks' technology stores ripped files with encryption far stronger than DVD's CSS.
In fact there's a compelling argument that RealDVD's copies are essentially the same as Hollywood's DRM protected digital copies on new DVD releases. The only material difference is whether studio executives get to dictate what devices can play the resulting copies.
Although studios have consistently argued they couldn't make movies and TV shows available on DVD without copy protection of their choice, there's no evidence to suggest they would stop without it. Nor is there any evidence that sales have suffered as a result of consumer copying.
On the other hand there's a mountain of evidence that entertainment industry claims about new technology destroying their businesses are flat out wrong. With each new advance they warn of their companies' imminent demise and yet the result always seems to be expanded markets and record profits for anyone who embraces it.
Giving their judgment the weight of law when it has consistently been shown to be short sighted and just plain wrong only serves to harm the industries they claim to champion.
Written by: Rich Fiscus @ 18 May 2009 12:22
