By Bruce Gain for Intellectual Property Watch
An upcoming federal court ruling in the United States that will determine whether or not RealNetworks’ RealDVD copying software violates the US Digital Millennium Copyright Act (DMCA) will likely have a major impact on releases of similar software in the near future.

If RealNetworks can prevail in a US District Court in Los Angeles during the coming months, then vendors could sell similar software without violating an industry licensing agreement, said Fred von Lohmann, staff attorney for the Electronic Frontier Foundation (EFF), a California-based digital consumer rights group.

At the same time, the case will add momentum to consumers’ outcry for the ability to make personal use copies of their DVDs, Lohmann said.

“No matter what the outcome of this RealDVD case will be, it does look like the levee is beginning to leak quite a bit,” Lohmann said. “It is going to be hard to prevent companies from serving this market.”

At issue is RealNetworks’ claim that RealDVD does not violate the terms of its use of the Content Scramble System (CSS), which prevents DVD copies and their digitised distribution. But for the Motion Picture Association of America (MPAA) and the music industry it represents, RealDVD allows for DVD movies to be copied illegally under the DMCA.

At present, RealNetworks seeks to convince the Los Angeles federal court to lift a temporary restraining order against the sale of RealDVD during the coming weeks and then eventually to prevail in a full trial.

But while a ruling in RealNetworks’ favour would mean that, under federal law, software vendors could sell similar software without violating the CSS licensing agreement, the ruling would not necessarily open the “floodgates” for many different kinds of commercial DVD copying software, either, von Lohmann said.

“CSS licence requirements would have to be met. That would likely preclude many interesting market niches from opening (for example, if you are required to keep the original three-plus gigabytes of data encrypted until playback, it’s never going to permit moving to an iPod),” von Lohmann said. “So it’s not as much of a floodgate as you might imagine.”

Specifically, RealNetworks says RealDVD “allows consumers to securely store, manage, and play their DVDs on their computers.” The firm says the software does not allow users to distribute copies of DVDs and that RealDVD maintains CSS encryption. RealNetworks also says RealDVD adds another layer of digital rights management encryption that locks the DVD copy to the owner’s personal computer “to ensure that the content can not be improperly copied or shared.”

However, MPAA says that RealNetworks’ RealDVD does not meet the terms of the CSS licensing agreement and that it “illegally circumvents this copyright protection system.”

“The RealDVD software does nothing to prevent widespread movie theft and in fact, facilitates such theft, thereby violating the legitimate interests of rights holders,” Elizabeth Kaltman, MPAA vice president for corporate communications, said in an emailed statement.

The MPAA also maintains that RealDVD software will enable users to engage in “rent, rip, and return” practices. The MPAA describes a scenario where someone can rent a DVD from US outlets such as Blockbuster or Netflix and use RealDVD software “to make multiple permanent illegal copies of the movie, and returns the DVD, only to rent another popular title and make permanent copies of it, repeating the cycle of theft over and over again without ever making a purchase.”

However, Bill Hankes, a spokesman for RealNetworks, said that “unlike other tools that have saturated the marketplace, RealDVD is not a vector for mass piracy,” while adding that RealDVD “does not violate the DMCA or any other copyright law.”

Meanwhile, while the motion picture industry sues RealNetworks, several open source alternatives that can be used to copy DVDs are readily available for download over the internet. Freeware offerings include DVD Shrink, HandBrake, and DVDFab HD Decrypter. So why does the MPAA and its affiliates not sue these developers as well?

MPAA says injunctive claims against freeware developers that create DVD copying software exist.

“Regarding your question about injunctions against other freeware software, you can look at the DeCSS case as an example of an injunction against freeware decrypters,” Kaltman said, in reference to a court ruling over five years ago that prohibited the distribution of DeCSS , which was the first widely distributed freeware DVD copying software.

However, Lohmann maintains that MPAA’s attempt to use legal channels to block DeCSS’ distribution was a “failure.”

“Even though they won the DeCSS lawsuit, they lost the war,” Lohmann said. “DeCSS continued to be available and was replaced by newer software.”

In the commercial sphere, the RealDVD software is often compared to multi-media systems manufacturer Kaleidescape’s product, which is a hardware system that allows for the distribution of DVDs and other content to be distributed for viewing to different screens in several rooms over a home network. The system also allows for DVD playback without DVD menus, trailers, or advertisements.

But while Kaleidescape prevailed in a lawsuit filed by the motion picture industry, the ruling’s effect on case law is limited; Kaleidescape was a California state court case and is under appeal, and is not necessarily directly applicable to federal law.

Still, however, Kaleidescape is considered as an important precedent, Hankes said. “Kaleidescape does exactly the same thing,” Hankes said. “We think we should be allowed to distribute just as they are.”

Bruce Gain may be reached at info@ip-watch.ch.