August 14, 2009
Fair Use Survives RealDVD Case Even if the Software Does Not
Real Networks lost big earlier this week when Judge Marilyn Patel issued a temporary injunction preventing Real from distributing the RealDVD software. If sold, it would have allowed consumers to back up their video library to a home server which would allow more flexible viewing on computers and other connected devices. The MPAA had a cow over that possibility and sued last August. Real was encouraged by a California state case that allowed another software maker to accomplish mostly the same thing. That case has been overturned as well. The DMCA prohibits the sale or distribution of software or other devices that can crack copy protection schemes, so one would assume this case would be pretty cut and dried. Real tried to get around the the issue by getting a license for the CSS scrambling system used to protect DVDs. The company also designed its software to add more DRM so the video files could not be further manipulated by the consumer. Nice try on that one.
The problem is that the software didn't make any distinctions as to whether the consumer actually owned the DVD in question. Borrow a copy from friends, rent it from Red Box for only a dollar, the software didn't care. It's one thing to back up your DVD collection. It's another thing to back up the one at Blockbuster. The Court recognized that consumers may have some rights in backing up their own DVDs, but note that the DMCA prohibits in the trafficking of software ot other artifices to that purpose.
From the opinion:
The Studios contend that fair use is never a defense to DMCA liability. This is the truth, but not the whole truth. Fair use is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work under sections 1201(a) or (b), respectively.
* * * *
The court finds the DVD CCA’s argument that its business model relies on CSS licensing and any purported “fair use” copies of CSS-protected DVD content would destroy the veritable raison d’etre of the DVD CCA unpersuasive. The purpose of copyright law, and the fair use that copyright law embodies as an exception to protection, is not to protect the business model of any particular company. The court will not hold that consumers do not have the “fair use” right to make copies of CSS-protected DVD content simply because the DVD CCA would be harmed by such use of its licensed works.
What is ironic is that the web is rife with small software packages that give the consumers the ability to break CSS protection and rip DVDs. Most of them are free. This includes software capable of defeating the variations on protection by producers such as deliberately including bad sectors on a DVD for the express purpose of defeating rippers. It sounds circular, but the rippers seem to be one step ahead. The peer to peer networks are acute examples that protected content is hardly protected at all, and that includes the beefed up ACS protection system for Blu-Ray discs. It is refreshing that in light of these facts that the Court would still recognize that fair use exists, even in this electronic age of locked-down content. The content holders would have you believe that the mere fact of blocking uses, even fair use, eliminates it. They must be disappointed that the courts have not validated that concept.
Judge Patel's 58 page order is on Scribd. [MG]
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