Hollywood's biggest movie studios are suing to stop RealNetworks from distributing DVD copying software. In doing so, they're taking on a losing -- and embarrassingly outdated -- battle.
The software in question is RealDVD, a program announced early in September and formally launched Tuesday. It lets you duplicate any DVD, but with strict limitations: The basic package lets you make only a single digital copy. If you pay extra license fees, you can transfer the digital copy onto as many as five other hard drives. The program never provides options for disc-based burning.
The movie studios say the software "enable[s] massive theft of creative content." So why is their claim so comical? Allow me to explain.
Real has put protecting limitations into place.
The notion, stated by the Motion Picture Association of America (PDF), that RealDVD could enable "massive theft" doesn't make sense. The program allows you to make only five copies of any given disc. It also locks each copy onto its designated hard drive, and it never alters the discs' encryption codes. These parameters do not equate to "massive theft," unless someone making a few digital copies of a disc is "massive." Real also makes it abundantly clear that the program is designed only for personal, non-commercial use with discs that you already own.
"In the legal context, I don't know what else you can do other than tell consumers that this software can only be used (a) on copies that you own and (b) for private use," says Chris Renk, an attorney and shareholder with Chicago-based law firm Banner and Witcoff.
Real has a solid "fair use" argument.
Real's claim that the program's intended use falls under "fair use" has fair merit. Real cites a previous case against an archival program called Kaleidoscape that was shot down by a court a couple of years ago. Consumer rights groups such as Public Knowledge have previously spoken out about users' fair use rights, saying that Hollywood has gone too far in trying to ban DVD duplication. The law itself, which will be the deciding factor, appears to be on Real's side.
"I think there's a good 'fair use' argument that can be made," Renk says. "If you look at this situation, it is space-shifting -- you aren't breaking the code, so anybody who picks up a DVD after you've run it through the software still will not be able to copy it. You're telling people expressly, 'Hey, you can't copy this unless you own the DVD. You can't use the software on a copy of a movie that you haven't purchased.'"
It's already a moot point.
Let's face it: Other issues aside, there are plenty of easily located, below-the-radar solutions that let you do the same thing (and much more). Even if the studios were to stop Real's software from being distributed, they're not going to come close to stopping illegal filesharing. This has Napster 2000 written all over it.
Their logic is nonsensical.
Part of the argument is that the software could let users "rent, rip, and return" movies -- something RealNetworks says it discourages, but acknowledges it cannot fully prevent. If a judge agrees with the studios' claim that this is grounds for the tool to be made illegal, what other implications could result? Maybe ski masks should be illegal, because they could be used for burglaries. Guns can certainly enable murders; we'd better outlaw those as well. Hell, pants can be used to aid the act of shoplifting. Better start hiding your chinos, you smooth criminal.
The point: The weapon is not the crime. As the music industry is slowly learning with its own DRM struggles, trying to stop filesharing by restricting people in ridiculous ways will only backfire in the end. Outlawing every tool that could potentially be used for piracy will not stop the practice; the energy would be better spent trying to give people reasons to actually buy your products instead.
Still not convinced? Just ask Lars Ulrich. I hear he's learned a thing or two about this stuff.
This is a well-reasoned post, but starts with a flawed premise, namely that someone other than the rights-holder can build this business model without licensing.
The key issue here is whether Real circumvented CSS -- a technology it is licensed to use -- to make the duplication. It is impossible to duplicate without some level of circumvention, and that violates the DMCA. As to fair use, the US Copyright Office rejected 321 Studios' fair use argument seeking a DMCA exception for making back-up copies of DVDs, a more innocuous use than producing five usable copies.
As far as being moot because of piracy, that suggests that all rightsholders -- motion-picture makers, recording artists, songwriters, broadcasters, authors, photographers, graphic artists -- should just throw up their hands and walk away. Are you advocating that?
Finally, the rent-rip-return model is not comparable to your examples, because you own the ski mask, you own the gun, but you don't own the Netflix disc.