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RealNetworks claims CSS license lets it copy DVDs. Sues studios

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RealNetworks is filing an anti-trust action against the major US studios. It says it has a license to use CSS decryption which it obtained legally, and therefore its RealDVD copying software is not only legal, but attempts by the studios to block it amount to anti-trust. It will be interesting to see if a court agrees.

Subtly it is saying that trying to block the use of its software, when perfectly reasonably licensed, is a form of bullying, that the very act of issuing a suit against RealNetworks is an act of anti-trust.

We‘re not quite sure how any request to a legal framework of itself can represent an act of anti-trust. But this argument has never been tried before and RealNetworks may end up getting it heard in a court of law.

If you do something suspected of being illegal, then surely everyone affected can sue you and failure to do so means they have not done enough to protect their copyright, and might risk losing some legal protection. Since the RealNetworks software affects all of the studios, it is only reasonable that all of them sue. But that doesn‘t mean that any of them are right.

Back in October, just after RealNetworks launched its RealDVD software, the studios filed suit to prevent the new approach that Real brought to DVD copying. What RealDVD does is copy all the DVD files over to a hard drive, including the decryption keys, to view the video later, retaining its copy protection. It has argued that this does not breach the Digital Millenium Copyright Act because it does not interfere with the copyright protection, just shifts it to another media.

You might argue that it takes the encryption out of its juxtaposition with the content, and creates a new supposedly secure environment, and the studios are effectively arguing that it was never meant to be used like that.

What‘s funny is that the CSS algorithms have been known for at least a decade, and are not hard to crack at all, whether on a DVD or in the RealNetworks product.

Any old utility

The studios suit takes issue with this, saying that the RealDVD program illegally bypasses the copyright protection built into DVDs. We have some sympathy with the studio view legally, and pointed out in our initial analysis that in order to work, this process would have to locate and copy a decryption key from the DVD, something that would not normally copy over if the files were copied using just any old utility. This might be interpreted by a court as amounting to a breach of the Digital Millenium Copyright Act. Anyway we‘ll soon know because that is shortly due its first hearing.

Real says the studios have violated the Sherman Antitrust Act, by collectively licensing their DVD encryption technology through the DVD Copy Control Asociation (DVD-CCA), of which the majors are all members – and then suing Real when it used it unconventionally.

Where it may have a point is in saying that it has been given an encryption license from the DVD-CCA to the Content Scramble System which protects DVDs. Just because the studios don‘t like what it is doing with it, doesn‘t automatically mean that its software is illegal.

The implication is that DVD makers are a cosy little club and that RealNetworks wants to gatecrash it legally, but instead of supplying DVD players it wants to shift the process to a PC hard drive. We can already have a DVD player IN a PC, why can‘t a PC BE a DVD player?

Up until now any software that gave users a right to a backup copy of a DVD was deemed illegal since it required breaking CSS. The DMCA contradicts earlier personal use legislation which says that in the US you are allowed to make a copy of copyright content for personal use. It could be that RealNetwork‘s product walks a line be-tween these two pieces of legislation – allowing a personal copy and achieving it without breaking the DMCA.

Copyright © 2009, Faultline

Faultline is published by Rethink Research, a London-based publishing and consulting firm. This weekly newsletter is an assessment of the impact of the week's events in the world of digital media. Faultline is where media meets technology. Subscription details here.

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