An Update on the DMCA

Last May I posted — in an article titled “Challenging DMCA Conventional Wisdom” — about a creative, but seemingly futile, effort by RealNetworks to plead its way around the Digital Millennium Copyright Act for yet another variant of DVD-ripping software. Well I missed the conclusion. In mid-August a federal court in San Jose (the Northern District of California) sided with the movie studios against Real, issuing a permanent injunction, and holding in a well-reasoned opinion in RealNetworks, Inc. v. DVD Copy Control Association, that Real had violated the DMCA.

So this is effectively the end of RealDVD. Calling the DMCA a series of “epochal amendments” to US copyright law, Judge Marilyn Hall Patel concluded that CSS technology “effectively controls access” despite having been hacked, finding that the statute is directed at preventing circumvention by the “average consumer,” and that Real’s CSS license was no protection because it had exceeded the scope of the license.

While it is true that no case has ever held that a licensee of the DVD [Copy Control Association] can be held liable for circumventing that same technology under the DMCA, that is simply because no court has ever adjudicated the issue. And, it may be that no licensee has been so bold as Real.

Perhaps the only amusing part of this rather sad escapade is the court’s observation that the RealDVD product was known internally as “Vegas,” because of the well-known marketing phrase “what happens in Vegas, stays in Vegas.” Secrets don’t hold up that well in Hollywood, on the other hand.