OPINION: Use of Fair

In the end, I suspect, the studios felt they had no choice but to bring a lawsuit against RealNetworks in an effort to shut down sales of its RealDVD copying program.

Had they done nothing and simply let a company with Real’s consumer profile go on promoting a product billed as offering a “legal” way to make backup copies of your DVDs, they would be seen, by implication at least, as having accepted the proposition that consumers indeed have a “legal” right to make personal-use copies, much as people routinely do with music CDs.

While that may seem like a perfectly reasonable proposition to many people, it is one the studios have never accepted.

To them, any kind of copying is like a “gateway drug,” leading inevitably to massive piracy.

They have also never been keen on the idea of letting technology developers define or enable new, unlicensed usage-models from which the studios cannot derive revenue. If you can buy a piece of software from Real to copy your own DVDs, there is no way for the studios to charge you for the privilege.

The only real question was what kind of lawsuit to bring.

The most straightforward approach would have been to attack the problem at its root and sue Real for contributory copyright infringement on the grounds that consumers, in fact, have no clearly established, affirmative legal right to copy DVDs. By providing consumers the tools to copy, Real is aiding and abetting illegal activity.

The problem with that approach, however, is the not-inconsiderable risk that the litigation could end up establishing the very legal right it was meant to suppress.

Consumers did not have a clear legal right to record TV programs in their entirety either until the Supreme Court declared it a fair use in the Betamax case.

Faced with a similar dilemma in the Kaleidescape case, the studios tried an end-run around the fair-use question by accusing the maker of home-media servers, through the DVD Copy Control Assn., of violating the terms of the CSS license agreement, which the studios claim prohibits DVD players from being designed to copy DVDs.

That strategy blew up in their faces, however, when the judge in the case ruled that, for technical reasons, that’s not what the contract actually says.

That defeat led directly to RealDVD, which relies both on Kaleidescape’s interpretation of the CSS license agreement and the design of its software.

The strategy the studios have settled on is to sue Real under the Digital Millennium Copyright Act, which prohibits the sale of devices that circumvent copyright protection technologies such as CSS.

Their hope is that by confining the case to the question of circumvention, they can short-circuit any discussion of the purpose of the circumvention. In other words, they hope to make the fair-use argument moot: If circumvention is illegal per se, it doesn’t matter that your purpose in circumventing might be legal.

It’s a high-risk strategy that will likely turn on two issues. The first is the question of how RealDVD actually functions.

Do the operations it performs, in the sequence it performs them, together actually amount to a “circumvention” of CSS, in both a technical and a legal sense?

Real claims they do not because all of the steps RealDVD performs are permitted by the CSS license as interpreted by the Kaleidescape court.

The studios argue that the judge in the Kaleidescape case got it wrong (the ruling is on appeal), but that in any case, CSS is clearly intended to be an anti-copying technology, so if the end product of RealDVD is a copy, it has, by definition, circumvented CSS.

The other critical question is whether the studios can keep the case confined to the circumvention issue.

Different federal courts have reached different conclusions on the issue. Some have ruled that the DMCA, in effect, trumps fair use: You circumvent, you break the law, end of story.

Others have ruled that the purpose of the circumvention matters.

If the judge in the Real case does decide to address the question of personal-use copying, his or her ruling probably won’t be the last word on the matter.

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