Wednesday, March 11, 2009

Bob Barr takes on RealDVD case; ignores the real issues

Former Republican Congressman and 2008 Libertarian Party Presidential Candidate Bob Barr has a new issue: copyright law. And he's dived right in by taking on the battle between the studios and RealNetworks over the software company's "RealDVD" ripping software. Barr, now practicing law in Jasper, Georgia, comes down firmly on Real's side in an op-ed in the San Francisco Chronicle:
While the industry lawsuit relies in part on the "Digital Millennium Copyright Act of 1998," federal legislation that was designed to thwart the development and sale of products that allow individuals to distribute their own versions of copyrighted material such as movies, the clear fact is that RealDVD software does not circumvent any technology, and does not permit a user to distribute a DVD. The product does nothing more than permit the purchaser to copy a DVD onto his or her own PC or laptop. In other words, the product simply enables the private viewer to watch the DVD they'd already purchased directly from their computer's hard drive rather than rely on the sometimes-cumbersome process of inserting the DVD itself into a player.
Well. This is a complicated case, and no one can do justice to all the issues in a single blog post (or op-ed). But a few of Barr's assertions (and they are mere assertions, not arguments) deserve a response.

Barr says, "the clear fact is that RealDVD software does not circumvent any technology." "Clear fact"? Saying it doesn't make it so. The studios argue (see esp. pages 11-20) that the software does, in fact, circumvent DVDs' CSS DRM technology, in numerous ways. Moreover, Real's own primary argument does not appear to be that it "does not circumvent any technology." Rather, Real argues that -- whether its actions count as "circumvention" under the DMCA -- its release of the RealDVD software is authorized under a license it has from the DVD Copy Control Association (“DVD CCA”). In any event, the facts were not so "clear[ly]" on Real's side to the federal judge hearing the case, who appears to have been persuaded -- at least preliminarily -- by the studios' arguments that RealDVD does indeed circumvent DRM.

Barr claims RealDVD "does not permit a user to distribute a DVD." That's a broad statement, and it's not exactly clear what he means. But if he's saying that studios' concern about RealDVD is that individuals will all of the sudden start stamping out multiple copies of DVDs and "distributing" them, then he's set up a classic straw man. The studios haven't said that. But they have set forth in considerable detail the nature of the harm that they believe RealDVD threatens. See here at pages 20-24. In sum, the studios are concerned that RealDVD -- by enabling the making of permanent copies from a DVD -- will undermine their ability to sell various services where the consumer pays to enjoy a film for a limited period of time. To take one obvious example, with RealDVD, a consumer would be able to easily "rent, rip, and return" a DVD he has rented from Blockbuster or Netflix -- thus obtaining a permanent copy for much less than the price of buying a DVD. As the studios put it in their TRO motion:
The incentive for the consumer is obvious, and all but overwhelming. "Why," he or she may ask, "should I pay $18.50 to purchase a DVD, when I can rent it for $3.25 and make a permanent copy?" "Why Even rent it for $3.25, if I can just borrow it from a friend and make a copy?" Or, "Now that I've spent $29.99 on this RealDVD program, why don't I copy my friend's whole DVD collection?"
Yes, it's true that DVD-ripping software software has existed for some time, and has already enabled such illegal activity. But there is a vast difference between the open-source software and versions sold by shady Antigua-based operators, and a product offered by a "real" US-based company that already offers legitimate products used by millions. Real threatens to mainstream, legitimize, and vastly increase the amount of DVD ripping, and the studios are entirely within their rights to try and stop it.

One last thing to emphasize when thinking about this litigation. It will, inevitably, be portrayed as being "about" copyright, the DMCA, DRM, fair use, and technology. And this case may in fact affect the development of law and policy in those areas. But the outcome of this case may well turn not on interpretations of the DMCA's anti-circumvention provisions, but instead on boring old California contract law. Specifically, the parties will argue about whether a document called the "CSS General Specifications" is part of the CSS license that binds Real -- an issue currently being considered by the California Court of Appeal in a separate case involving a company called Kaleidescape. Not quite as sexy as arguments about DRM and fair use and the future of technology, but it could well be the issue that determines who wins here.

Barr concludes by saying that "Defendant RealNetworks has the law, the facts and common sense on its side. The industry has money and hubris in its corner." Seems to me that the real hubris is in making unsupported assertions about a legal case, failing even to acknowledge the other side's arguments, and ignoring the big legal issue that may well determine the outcome.


  1. I think Mr. Barr is acting as an outraged consumer. I have paid the studios thousands of dollars for my DVD collection; but what they are saying is tough luck if any can no longer be played (and my favorite has), you have to buy them again. Moreover, if you want to put all your DVDs on your home serve to protect them and be able to play them anywhere in your house, you have only one choice – get an illegal program on the Internet and do violate the DMCA.

    As to circumvention, Barr is right and you are wrong. Please read the affidavit (filed on October 7, 2008) of Dr. Edward W. Felten, the distinguished Professor Computer Science, who lays out in compelling detail why RealDVD is not circumvention.

    As to the "rent, rip, and return" fable, not a single shred of evidence has been presented (not even a typical unreliable MPAA survey) to back up their "lost revenue" claim. If this were the case, however, they should have sued Real under an indirect copyright theory. But they haven't and won't as they are deathly afraid they will lost such a case. It stands to reason if the Supreme Court says you can copy movies and video you get for free for personal use (Sony), it is illogical to say you can’t make a copy for person use of movies and video you paid for! But the studios are only suing under the DMCA and the agreement.

    I disagree that Mr. Barr is acting out of hubris. He is acting out of common sense (which is hard for me to say since I disagree with many of his political statements). As you note, this case turns on the Kaleidescape contract case in which a CA trial court has already said the agreement doesn’t prohibit copying. If that true how can there be a circumvention under the DMCA? You hand me the keys, say go ahead into my house. I sign an agreement that says “here are they keys to my house, you can enter but you cannot damage anything.” I watch your TV. A court will not find me guilty of breaking and entering because I used your keys to enter and watch your TV; and, as long as I left your TV in its original condition; you can’t win a lawsuit against me for touching the TV.

    Admittedly, the CA trial court decision is on appeal. I suggest you read the trial court decision and appeals briefs in that case and then comment. But if I were Judge Patel, I would vacate the TRO and ask both Real and the motion picture companies to take a seat and say, “I’ll rule on this case when we get a final decision in the California courts since this case turns on state, not federal law.” I’d note to Real that if they are wrong and they release RealDVD, and the CA courts come out the other way, which is possible but questionable, Real could be liable for money damages – which the studios will then have to prove. But a TRO or an injunction is only supposed to prevent that damages that cannot be cured by money (and, as you note, that’s all the studios allege).

    Finally, you say that: “Real threatens to mainstream, legitimize, and vastly increase the amount of DVD ripping, and the studios are entirely within their rights to try and stop it.” First, where do you have the hubris to say they will vastly increase it? Have you even done a market study? Studies I’ve seen say just about everyone that wants to rip their DVDs has done so with the illegal software. Second, what rights? Only the contract rights, which, so far, they’ve lost one to zero. Second, what damages are there, RealDVD locks the copy to the user’s machines? We talked about the theoretical rent rip and rent fable; but there is no evidence of potential loss. Yes, the studios have “the right” to try and stop it. But what they should have done is negotiated a settlement rather than rush to court. Their actions smack of hubris, that is, they’re saying its my football (content) and I make up all the rules as I go along. Everyone signed an agreement, they lost in state court so they rush to Federal court and cobble up the Federal DMCA claim. I do agree that it is likely to come down to the “unsexy” state court claim. If you do read the pleadings you might find it quite sexy, if not as sexy as the copyright issues. That’s where their rights are laid out. Not in your blog.

  2. To Anonymous (Kaleidescape exec? attorney?):

    Please read what I *actually* wrote in my post, which is quite different from the straw men you attack.

    For example, I did *not* definitively write that RealDVD engages in circumvention. I merely pointed out that the issue isn't the "clear fact" that Barr claimed (and provided a link to the studio's TRO brief so that readers can see for themselves). Same with the "rent, rip, and return" claim -- I simply described the type of harm that the studios allege (which Barr ignored).

    I have read many of the papers in the Kaleidescape case (including the deeply incoherent transcript of the court's statement of decision that he read in court). I think the plaintiffs have the better argument, but of course we'll see how the Court of Appeal rules.

    Quite ironic that you claim some arguments about rights are left out of my blog, given that I -- not Barr and not most of the other coverage -- actually linked to the documents and pointed out the importance of the contract issue.

    As I wrote in my post, "this is a complicated case," and no blog post can address all the issues. But I think a fair-minded reader would recognize that my post at least tried to set out what the competing arguments *are* -- which Barr's piece did not.

  3. Thank you for posting my response. I hope you will indulge me in replying to your response. [BTW I am not a Kaleidescape employee, nor have any financial interest in their winning their case. Indeed, I am simply observing from the sidelines. Nor am I rooting for either side in either case. I just felt your characterizations were incorrect and wanted to set the record, such as a blog is, straight.]

    Actually there seems to be some misunderstanding here, as I have read and re-read your post. You said: “Moreover, Real's own primary argument does not appear to be that it ‘does not circumvent any technology.’" The Real pleading you link to titles their first substantive argument on page 2: “II. RealDVD Fully Complies With The CSS License Agreement And Therefore Is Not ‘Circumventing’ The CSS Technology.” How can you say their primary argument isn’t that they are not circumventing. I also cited to Professor Felten’s affidavit supplied by Real which spends a great deal of time carefully explaining why there is no circumvention. Those document are what I was referring to when I said you were wrong. Yes, Mr. Barr did not cite to specific documents, but reading Professor Felten’s affidavit I tend to agree with Mr. Barr that Real didn’t circumvent. But while you cited to Real’s pleading you incorrectly characterized Real’s position. I don’t see that I set up a straw man.

    While our predictions on the possible outcome of the Kaleidescape case may differ (I didn’t predict the outcome but suggested Judge Patel may want to wait for the state courts to rule), neither you nor I will determine it; that will be up to the California Court of Appeal and, likely, the California Supreme Court. I do agree that the trial judge’s opinion was turgid and went on unnecessarily for pages; nevertheless the kernel of his opinion was clear: the relied upon Technical Specifications were not legally part of the agreement, and therefore didn’t bind Kaleidescape and, even if they were binding, they didn’t prohibit making a copy nor did they require the disc be in the drive for playback. I’m pleased to hear you’ve read many of the papers in the Kaleidescape case, therefore I would be interested in what you believe to be the specific language in the Kaleidescape-DVD Agreement that says Kaleidescape can’t make a protected copy.

    I’m confused as to what rights I said you left out. What I said was there was no studio rights at issue here except those under the contract (they did not raise secondary copyright liability). This was in response to your saying they “are entirely within their rights to try and stop [Licensed DVD ripping].” I don’t see where I said, and certainly didn’t intend to say you left rights out. Rather the opposite; I merely said “what rights?” I’m missing the irony or that this is also a straw man argument.

    Finally, you are certainly correct, this is a complicated case. As I said at the beginning of my original response, Mr. Barr was just acting as an outraged citizen and was giving his opinion, not attempting to be a neutral party. I agree he didn’t attempt to lay out both sides of the argument. But IMHO, yes you did lay out the arguments the studios made but you did not accurately portray the other side.

    PS: Do you think anyone is reading this besides you and me?

  4. To Anonymous:

    On the "circumvention" point, this may be largely a matter of semantics. My understanding is that Real's *primary* argument is: "We have permission under the license; therefore what we're doing isn't a violation of the anti-circumvention provisions in Section 1201." That is different from saying (as Barr implies): "What we're doing simply isn't a violation of the anti-circumvention provisions in Section 1201 -- whether we had a license or not." Now, I suspect Real will, in the course of this case, make *both* arguments, but in the TRO papers, they emphasized the first.

    It's been a very long time since I looked at the actual language of the CSS license. I would just refer you to page 14 of the appellate brief I linked to above, which discusses the 2 provisions the studios and DVDCCA believe Kaleidescape violated.

    On the "left out" point, I was just responding to your statement "That’s where their rights are laid out. Not in your blog." My point is just that the studios believe that they have rights under the DMCA -- rights that Real is violating (which is what they said in their complaint). Real says (I'm obviously paraphrasing): well, you may have rights under the DMCA, but the DVDCCA gave us permission to exercise those rights (to circumvent access and copy controls). The court will have the last word.

    And as for your PS: isn't the Internet wonderful? It lets the 23 people on earth who actually care about this issue have a place to get together and obsess.

  5. I’m glad you agree Real’s primary argument is that they lawfully had the keys, therefore there was no DMCA violation. As to Mr. Barr, last time I checked he wasn’t a copyright specialist, so taking him to task for being imprecise diverts from his point, which was concern about inhibiting innovation. In essence, Barr’s argument was that the studios were using the DMCA to inhibit innovation. I won’t comment on that, but mere say that others have been accused of the same thing, most recently Amazon: Amazon invokes DMCA against Kindle e-books from other vendors, ( It’s clearly more interesting, however, for the two of us to debate the finer points of the contract case; no doubt leaving Mr. Barr and others in the dust. I no idea whether Real will go beyond its first argument to argue that under the DMCA it doesn’t matter whether or not they got the keys lawfully. We can discuss that issue if they do. Nevertheless, if Real is found to have the keys lawfully, IMHO it’s a pretty clear they haven’t breached the DMCA.

    The DVD CCA Kaleidescape appellate brief is very well written, but I don’t agree it’s persuasive that Kaleidescape breached a provision of the license (and by implication, Real). Reading the license won’t help you. The brief refers to the General Specifications and not the license. I have reviewed page 14 of the Appellant’s brief (isn’t the Internet wonderful) and have several problems with it. (Similar to the Trial Judge’s problems.) First, according to the Judge, neither of those two provisions are part of the license. Second, the “General Specifications” is apparently a confidential document and the Brief contains only a quoted sentence of one provision and a conclusory statement describing the second provision, neither of which persuade me.

    Assuming the Judge is wrong, and the General Specifications is part of the “deal,” I have a hard time coming to the conclusion that Kaleidescape breached based on the characterization of these two provisions in the brief. According to the brief, Section 1.5 says, “[t]he DVD-Video Content Scramble System is intended to prevent casual users from unauthorized copying of copyright materials recorded on DVD-Video/Audio Discs.” This ignores two points: (1) this isn’t language that says you may or may not do something (lawyers put language in agreements with words like “must,” “shall,” “required to,” etc. to direct compliance), it is a statement of intention, what the system is intended to do. (2) What is “unauthorized copying?” While the brief goes on at length about concerns of “unauthorized copying,” nowhere does it point to a provision either defining unauthorized copying or a straightforward provision prohibiting “unauthorized copying.” This is an agreement between DVD CCA and Kaleidescape; it is a illogical to say Kaleidescape breached the license by allowing a protected copy to be made if no provision specifically forbids such an act. Also, unauthorized by who? Since the agreement is between DVD CCA and Kaleidescape where does it define authorization? Moreover, to be enforceable the license should say what constitutes casual copying, and the brief does not point to where the General Specifications, or any other document, defines that term.

    That leads us to the second provision discussed on page 14. Again bypassing the issue as to whether the General Specifications is part of the license, the brief merely makes a conclusory statement. The actual language of Section 2.1.2 isn’t in the brief, so I have to rely on the Judge’s conclusion, i.e., the language is informative not normative. Judge Nichols said: “It's not definite to me. These words seem to be statements of what the computer scrambling device is supposed to do.” Until we can see Section 2.1.2., I’ll go with the Judge. Admittedly the brief says, “Section 2.1.2. dictates….” But because we can’t read it, it’s only the brief’s conclusion. Moreover, Kaleidescape’s brief at page 65 claims that Section 2.1.2. doesn’t even apply to their product, only to “i) DVD-Video Players, and ii) the combination of a DVD-Video Drive with a DVD-Video CSS Decryption Module.” They say by its terms, it doesn’t apply to their product (which seems to be supported by the DVD CCA’s brief – see page 18.) But without the words of that section, we don’t know if Kaleidescape is right about that either.

    I didn’t understand you were referring only to studio rights under the DMCA. I now understand the point you were making. I just don’t believe they have any DMCA rights without proving a breach of the agreement.

    Yes, the Internet is a place for us to obsess. I appreciate your patience with my posts and your thoughtful replies. Even though, as you can see, we differ in our interpretation.

  6. FYI - here are the URLs for the Preliminary Injunction motions filed last week: and Also the hearing, I understand, has been postponed from April 1 until later in the month.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.