Media Wonk

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The Real deal - September 30, 2008

OK, Media Wonk was off on jury duty today, so I'm just now catching up on the fun. I'm speaking, of course, of the dueling lawsuits filed by Real Networks against the DVD-CCA and the major studios, and the major studios suit against Real Networks over its RealDVD software, which officially shipped today--the showdown we've all been expecting. Haven't had a chance to really study the briefs yet, but he's my rough guess as to the likely sequence of events that led to today's race to the courthouse door:

The Real situation was taken up last week at a board meeting of the DVD-CCA. The discussion didn't get very far, however, for reasons I won't go into here, and the meeting ending without a decision being taken on whether DVD-CCA should take Real to court for violating the terms of the CSS license. With the appeal in the Kaleidescape case still pending, that was going to be a tough sell for the studios in any case. Under DVD-CCA's bylaws it takes a vote of a majority of the board, plus at least one yea vote from each of the three industry groups represented: the studios, the consumer electronics companies and the IT industry. Even if all six of the studios voted yea, it would have taken at least one yea vote from the three CE companies on the board, plus one from the three IT companies.

It probably didn't help the discussions that the IT representatives had at the same meeting forced the studios into voting down a new proposal to allow "managed-copying" of DVDs under the CSS license at a time when the studios are ardently trying to convince governments around the world that they're serious about giving consumers a legal option for copying DVDs.

While the studios might eventually have persuaded the others to allow DVD-CCA to bring a suit against Real, the clock would be ticking for the studios once Real shipped RealDVD. If the studios were intent on stopping Real, they would have to act fast.

One option would have been to sue Real in federal court for contributory copyright infringement, on grounds that RealDVD enables infringing activity by consumers. That would risk a showdown over whether consumers have a right to copy their own DVDs, however, a question the studios have long been leery of facing for fear a court might find in favor of consumers.

So what we have is an attempt by the studios essentially to retry the contract issues they raised and lost in the Kaleidescape case, this time in federal court and without involving DVD-CCA. They further try to skirt the fair use question by bringing a DMCA circumvention claim, which they claim makes the purpose of the circumvention (such as fair use) irrelevant.

Mostly, though, they appear to be trying to just throw up enough smoke to get a temporary restraining order preventing Real from selling RealDVD and hoping that persuades Real to drop the product.

More in future posts.
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