Tuesday, April 28, 2009

Mercury News Op-ed: Hollywood innovates — and litigates when it must

For the latest news on the RealDVD preliminary injunction hearing, read Greg Sandoval's report in CNET. (In sum, things seem to be going well for the studios and the DVDCCA.) And for a dose of opinion, I have written the following op-ed piece, which will appear in tomorrow's San Jose Mercury News:

Major movie studios are battling software maker RealNetworks in a San Francisco federal court in a case testing the legality of Real's "RealDVD," a "ripper" that enables the copying of prerecorded DVDs.

RealNetworks and its allies on the "copyleft" portray this fight as yet another attempt by Big Content to crush any "innovative" new technology that challenges the way the "dinosaurs" in Hollywood do business.

But that facile description ignores what has actually been happening in computer labs and negotiating sessions from Silicon Valley to Santa Monica: Entertainment and technology companies are realizing that the long-term solution to their rivalry lies in licensing, not litigation.

The evidence abounds. Studios now offer their works on more than 275 legal web sites, almost all of which didn't exist a decade ago, including Hulu, YouTube, Amazon's streaming and download services, and Netflix.

And then there's RealDVD, which last fall became the first mainstream product to evade digital locks on DVDs, enabling consumers to "rip" movies to their computer — or a friend's. A court blocked sales shortly after RealDVD's premiere, and now must decide whether the ban should remain.

Other DVD-rippers have existed for years, but they are either "open source" creations with limited appeal, or are peddled by obscure foreign operators who can't get their boxes onto the shelves of well-known retailers.

RealDVD threatens to bring DVD ripping out of the shadows. Advertised as "legal" and "100 percent legit" — though "trafficking" in ripping tools is illegal under the 1998 Digital Millennium Copyright Act — RealDVD threatens to mainstream DVD copying.

What's wrong with that? At least three things. First, RealDVD enables "casual copying" of DVDs that will harm the market for all the legitimate services, as well as new ones like special DVDs that include an authorized "digital copy" that one can transfer to a computer or iPod — not to mention new business models that no one has dreamed up.

Second, RealDVD invites users to rent a movie, and then copy the DVD for one's permanent home library (or one's friend's). But by facilitating "rent, rip and return," RealDVD menaces a revenue stream that finances those very films.

Finally, the availability of a DVD-ripping tool from a "real" company like Real would signal to consumers that copying DVDs is OK — a message that is contrary to the law and that will undermine the market for legal content. Despite pleas from Real and its allies on the copyleft, no court has ever held that it is "fair use" to copy a prerecorded DVD.

What does Real say about all this? When in 1999 a company called Streambox launched a product that evaded Real's own digital locks, Real ran to court, argued against fair use — and won. When a customer wants an additional copy of RealDVD, Real demands another $19.99. But when the studios assert their rights and argue that RealDVD enables unauthorized copying of their movies, Real CEO Rob Glaser sniffs that it's not his job to stop digital theft, even as he enables it: "If you want to steal, we remind you what the rules are and we discourage you from doing it, but we're not your nanny." The studios don't expect Real to play nanny, but they do insist that it not sell digital lock picks to break into their most valuable products, and take them for free.

So, yes, Hollywood will litigate when it must, against companies like Real that won't respect creators and the law. It does so not for the sake of "crushing technology," but to ensure that real, legal innovations have the space to thrive.

Ben Sheffner is a copyright attorney in Los Angeles who has represented movie studios, television networks, and record companies. He blogs at http://copyrightsandcampaigns.blogspot.com. He wrote this article for the Mercury News.


  1. Except Real did license CSS. And you would need terabytes of hard drive space to store dvd's. You can't burn copies. And if you are so inclined you can get free rippers anyway that don't add a level of encryption, and don't break CSS.

  2. To trauma-hound:

    You are correct that Real licensed CSS. But the studios (and DVDCCA) argue that the license was for a player -- not a copier. That's a complex issue that I didn't have room to get into in this op-ed (but which I have touched on in previous blog posts).

  3. The CSS license contains very detailed specifications of what a conforming implementation must do. For example, it's public knowledge that the software and the DVD drive must do a complicated handshake to validate that the drive should grant read access to those portions of the disc containing the keys. Obviously, if you're reading from a hard disk, you're not doing that handshake.

    Also, MPAA has argued that Real knew when they acquired the license that MPAA's position was that the license did not permit copies. True. I was there at Real at the time and was the contact person charged with arranging the CSS license. I was instructed NOT to disclose we were building a ripper. There was great concern that, if DVD CCA knew what we intended, they would refuse the license.

    Also, the studios point out that Real also tried circumventing ARccOS and RipGuard, which are copy protection mechanisms. Under DMCA, you can't do that. Real argues they don't really count as copy protection because they aren't "effective." Real's theory is that in order for copy protection to be effective, it has to be secure encryption. I disagreed with this theory when I worked there but it wasn't my call. But theory aside, they sure look effective to me: Neither RealDVD nor any of the free rippers you talk about are very successful against ARccOS and RipGuard.

    Finally, re: your point about needing terabytes to store DVDs, you need to get out more. Fry's will sell you a 1TB drive for $97. That's enough to hold about 200 movies. How many do you have?

  4. USVO has licensed digital watermarking to Fox Searchlight to help enforce theft.


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.