RealNetworks court loss a reminder about limits of “fair use”

12 08 2009

RealNetworks suffered a serious blow late Tuesday night in its ongoing DMCA drama with the movie studios. Judge Marilyn Patel granted a temporary injunction against the company, barring it from selling its RealDVD copying software thanks to language in Real’s license with the DVD Copy Control Association (DVD CCA). Patel did not directly include the issue of fair use as part of her ruling, though she did make an observation about its relevance to the DMCA, asserting that it can’t be used as a defense against DMCA circumvention violations.

This case addresses both RealDVD (a software package) and, to a lesser extent, a prototype hardware product that would have ripped DVDs directly to a hard drive and hosted the files as a media server. Real originally tried to launch RealDVD in September of 2008 as a product which could rip DVDs to a user’s hard drive and play them back, while leaving CSS encryption intact. The software did not modify or change the files, and—unlike similar software packages—Real had even obtained an official license from the DVD CCA to do so. Sounds like everything was on track, right? Wrong.

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