RealDVD Preliminary Injunction Order
Judge Patel's opinion appears, at least on the surface, to conflict with a 2007 decision from a California state court on the issue whether the CSS license issued by the DVD CCA permits the licensee to facilitate making permanent copies of DVDs. In a case brought by the DVD CCA against Kaleidescape, the maker of a high-end DVD server, a Santa Clara County Superior Court judge held that a document called the "General Specifications," which include a requirement that the DVD be present in the device during playback, is not part of the CSS license. (That decision is now on appeal.) But Judge Patel ruled that the General Specifications are part of the CSS license (see p. 44). Her opinion says that she "does not deem this finding in conflict with the
Kaleidescape holding, which involved different facts and a different party." Perhaps I'm missing something, but I simply don't see how the two decisions are reconcilable on this point.
While today's decision involved only the issuance of a preliminary injunction, and theoretically Real could achieve a different result at trial, Judge Patel's opinions were definitive and strongly-stated, and it seems unlikely that new evidence or arguments would emerge that could persuade her to change her mind. Real has asserted affirmative antitrust claims, which remain pending.
The MPAA issued a statement through its Chairman and CEO Dan Glickman praising today's decision:
We are very pleased with the court’s decision. This is a victory for the creators and producers of motion pictures and television shows and for the rule of law in our digital economy. Judge Patel’s ruling affirms what we have known all along: RealNetworks took a license to build a DVD-player and instead made an illegal DVD-copier. Throughout the development of RealDVD, RealNetworks demonstrated that it was willing to break the law at the expense of those who create entertainment content.Predictably, Real was not pleased:
The creative community has been teaming for years with an array of technology partners to expand consumer choices for enjoying movies, TV shows and other content in diverse ways. This includes free streaming, on demand rentals, purchased downloads, as well as DVD bonus digital copies of entire TV shows, series and feature films. We are committed to advancing the consumer experience through technology while sustaining the creative community that makes the movies and TV shows we love. This will continue to be our member companies’ focus, and we look forward to continuing to make constructive progress in those areas.
We are disappointed that a preliminary injunction has been placed on the sale of RealDVD. We have just received the Judge’s detailed ruling and are reviewing it. After we have done so fully, we’ll determine our course of action and will have more to say at that time.Here's an op-ed piece I wrote back in April for the San Jose Mercury News, explaining why this case is important to the studios. And here's my previous coverage, which includes links to many of the briefs.