RealNetworks just screwed us all by settling lawsuits in which it might have lost--but which might also have given some new life to fair use for digital media.
The post-RealDVD world means that unless there's a major change to the law surrounding copy protection, there will never be a legal way to perform legal acts of copying or shifting protected movies, music, and games.
Take it from a guy who has a special E Ticket. The major movie studios can never sue me nor four other individuals ever for a variety of media-moving activities that you and 300 million other Americans could be subject to lawsuits over. It's like a superpower. More on how we got this pass later.
The suits in question revolve around RealDVD, software Real introduced in September 2008 that would copy the full contents of a video DVD to a file that could be played back on a Windows system. RealDVD is not a DVD ripper: those programs use one of many methods to strip the Content Scramble System (CSS), the DRM that wraps up DVD content, and other defensive techniques.
CSS and its ilk aren't precisely defended by technology--the standards are too weak or poorly executed--but by law. The much-excoriated Digital Millennium Copyright Act (DMCA) prohibits "circumvention" of software that's designed to prevent copying. Breaking DRM encryption breaks the law.
But Real went through the steps to obtain a license from the DVD Copy Control Association (DCCA), which controls CSS on behalf of the movie industry. RealDVD decrypted the DVD, copied it, and then locked it tight. Up to five PCs licensed by the same person could play back the discs. (Real also broke through a couple of unrelated protection efforts.)
RealNetworks must have calculated that as a company with a large war chest, it could succeed where others didn't dare to tread. As soon as it released RealDVD, it preemptively sued the DCCA and several studios to establish that it had the right to use CSS in the way RealDVD did. The studios and DCCA sued in return, and got software sales halted. The studios won in August 2009; Real appealed.
The settlement on Monday clears all the suits by RealNetworks agreeing to never sell the software again, refund the money to about 2,700 RealDVD purchasers, disable an associated metadata service, and pay $4.5 million to several movie studios, its Rhapsody partner Viacom, and the DCCA to cover legal and other expenses.
Some people may truly hate RealNetworks for its mediocre RealPlayer software (once a technical miracle) that was bundled with poorly disclosed third-party adware programs. But RealDVD was a thin blade trying to shimmy open the door of fair use.
Fair use is a maddeningly ambiguous set of rules enshrined in copyright law that mention nothing whatsoever about personal use and copying. Court decisions have shaped fair-use exemptions to copyright laws. Congress has passed extremely narrow copyright exclusions for personal use as well.
Without testing specific ideas about fair use or copyright scope in court, there's no sure way to know whether your particular software program, Web site, tweet, or steampunk-based laser decrypter isn't in violation. When the MPAA or a studio sues you, you could potentially plow through millions of dollars with no idea of the outcome.
You can always be sued, but you want to make sure that you have some basis on which to defend yourself, especially if the law and court decisions firmly back you up.
As BoingBoing recently reported about its battle with MagicJack, a group without crazily deep pockets can win and recover costs when it has a strong idea it is in the right. (BoingBoing benefitted from the California strategic lawsuit against public participation or SLAPP, which wouldn't apply to software and hardware.)
That what was made the RealDVD suits so exciting, because Real has hundreds of millions of dollars in the bank, and had a pugnacious CEO, Rob Glaser. Glaser faced down Microsoft over unfair competition and got nearly $800 million from the Windows maker. (Glaser was forced out as head of Real a few weeks ago, although he intended to move on after an executive search; he remains chairman of the board and owns nearly 40 percent of the firm.)
Even better, Real wasn't promoting piracy, or the broad right to rip DVDs into an unprotected format and then move them onto all kinds of devices for playback. RealDVD was very very narrow in purpose: can individuals buy software that converts one kind of protected content on a specific physical medium into another, with even stronger encryption?
Back in 2002, I joined a model lawsuit brought by the Electronic Frontier Foundation, what became known as Newmark v Turner (after Craig Newmark of craigslist, one of four other co-plaintiffs). The EFF wanted Newmark v to be joined to a lawsuit originated in 2001 by 28 movie studios, TV production firms, and cable operators against SonicBlue, which made ReplayTV, a digital video recorder that was at one point mildly superior to TiVo.
You may recall the ReplayTV suit, which begat the statement in a magazine interview from then chief executive of Turner Broadcasting that skipping ads was "theft," and that not watching ads was breaking a contract. He said, "There's a certain amount of tolerance for going to the bathroom." The industry later tried to backpedal from these statements.
Our suit was a way to try to establish that consumers had rights in this fight among firms: that time-shifting (recording for later consumption) and space-shifting (moving among devices under our control for personal use) were perfectly acceptable, and that we were in danger of losing such rights. Ad skipping was also part of the suit.
Remarkably, a judge agreed to join us in the fight, to the surprise, we think, of the 28 media firms. That would have been ugly had we gone to trial. We faced some potential (though unlikely) penalties were it to be proved that we had violated copyright in our efforts to establish we had used media fairly.
The media firms had a big problem, though, in that it would have been an ugly public-relations battle to try to paint Craig Newmark, your humble reporter, and three other mild-mannered individuals as horrible scofflaws.
Had we won, we would have enshrined a judicial opinion that would have perhaps emboldened consumer-electronics firms and software makers to create products that put much more control over recorded programs in the hands of consumers.
Instead, SonicBlue went bankrupt and sold its assets to another firm that removed the features in question in 2003. The media firms then dismissed their lawsuit against the companies involved.
Here's where it gets interesting. I had completely forgotten until researching the case to write this editorial that the 28 firms gave Craig, me, and our three fellow plaintiffs a "covenant not to sue" for the acts in question. That essentially nullified the suit because we had no more fear of litigation. (The EFF tried to get the same rights for all ReplayTV owners, just 5,000 people, but failed when the judge wouldn't move the case into class-action status.)
So we are copyright superheroes, with the ability to advance ads in a single click, shift content among hardware, and watch at our leisure! Behold us, and despair, for you will not see our like again.
RealNetworks needs to work with studios, so it settled and paid less than 1 percent of its still-giant cash hoard--last year, the company's cash was of greater value than its market capitalization for several months--to be able to move forward on content licensing.
I can understand why they did it, but it resembles the Google Book Settlement, a massive effort by Google to get a special judicial and settlement right to not be sued for selling works to which the owner cannot be found and to which it does not have assigned rights (so-called orphan works).
If Google succeeds, then no other firm will go through the expensive litigation that allowed Google to reach the point where it can settle and win in cooperation with the Authors Guild and the Association of American Publishers. Google will have a de facto monopoly.
It's unlikely that any other firm with the resources to challenge the media industry will release software or hardware that would allow DVD conversion in a manner that a court could find legal. Real was the last, great hope, because any other similar firm already has multi-million to multi-billion-dollar deals in play. Apple, Microsoft, and others aren't going to release anything that jeopardizes how they work with giant copyright holders.
That leads to the conclusion that in order to make legal copies, you are obliged to be a pirate. Media companies' failure to accommodate the notion that people may have legitimate purposes for making digital copies for their own use dooms them to eternal piracy.
We're all screwed. Well, I'm not, probably. But you are.
(Disclosure: About a decade ago, a company I helped incubate was bought by RealNetworks, and I received a modest amount of stock, long since sold.)
This was awesome. Thank you for your enlightenment and furthering my understanding.
What I don’t get is that TV, Moves, etc are a BUSINESS – they should care about making the consumer happy, not alienating them. I’ve never heard that “not watching ads is equivalent to breaking a contract” line before, but Jeeeeeeeebus!
Nobody said I had to have TV or Movies to live, or even to enjoy life. Media companies: by keeping this up, you aren’t bending me to your will, or to your way of viewing content. You’re convincing me that it’s a nice day to go for a walk, or to read a book.
Not watching ad? Dude, they make you sit through a crapload of movie trailers and ads when you watch a commercail DVD. I’m sure they’d make you sit through TV commercials if they could.
Indeed. I personally think the movie companies should either discount the DVDs where they place trailers or give the consumers a cut. After all I paid for the movie on the DVD and not the trailers, so they should pay for taking up space on my disc.
@phillamb168: Unfortunately, large businesses only care about making customers happy if it also makes their bottom line happy. When it comes to media companies, especially in regards to TV, we are simply meant to consume the advertising and go out and buy what we’re told to; the ‘product’ is actually the ad and the ‘filler’ is whatever show you’re watching. Turner, et al., know how their bread gets buttered, and it’s not by making us happy… it’s by keeping advertisers happy. Never forget that when you’re watching TV, reading the paper, listening to the radio, or online (perhaps less so, but still relevant), advertising ALWAYS takes precedence over and informs the user’s experience, both in terms of form and content. Of course, that can change quite a bit when it comes to independent or alternative media, but hopefully that goes without saying.
“When it comes to media companies, especially in regards to TV, we are simply meant to consume the advertising and go out and buy what we’re told to; the ‘product’ is actually the ad and the ‘filler’ is whatever show you’re watching.”
Close, but not quite right. We ARE the product.
It’s perfectly understandable that a business owner would get upset if their product had a mind of its own and kept wandering around trying to take itself off the market.
That’s why shepherds have sheepdogs and cattle ranchers have electric fences.
And the media companies have lawyers and DRM.
Thanks so much for sharing this, Glenn. I find the subject fascinating and at the same time frustrating that a legal matter of importance to so many is in such a total mess. And given that the well-heeled corporatocracy has most of our lawmakers eating out of its hand, I’m pessimistic that things will get sorted out thoughtfully or fairly.
Bad news in the copyright wars is kinda dog-bites-man at this point.
Media companies stopped acting as a service industry a long time ago, now they resemble more of a ‘privilege’ industry as in big media gives you the ‘privilege’ of giving them some money to experience their movie, music, or tv show via terms and conditions that are predetermined (by big media).
The trick is, big media has convinced us we need what they have and that we have to abide by their rules to consume it. As soon as we realize we don’t need anything they have to give, and that its merely a want, big media will be forced to return to its service industry roots.
>>The trick is, big media has convinced us we need what they have and that we have to abide by their rules to consume it. As soon as we realize we don’t need anything they have to give, and that its merely a want, big media will be forced to return to its service industry roots.
Ahh, but this has already occurred. We do realize it, and the Internet enables us. HOWEVER.. the media providers are ALSO well-aware of it, and have trotted out every dollar, and every lawyer under their command to fight it.
Why do you think network neutrality and municipal broadband networks are even an issue at all? Because they take away the last physical leverage media conglomerates still have control of.
don’t feel so bad. lots of independent producers (of all sorts) will probably be more than happy to sue you. then again, watermarks aren’t drm. i haven’t seen any audio creation tools with copy protection as an option, actually. am i just not looking?
TV IS a business that cares about making the consumer happy. However, for the TV business the consumers are the advertisers and the product they are selling is our eyeballs staring at commercials. So when we skip past the commercials they aren’t losing consumers, they’re losing product that they could be selling to their real consumers. And as businessmen they view losing product without payment as theft.
My copies of AnyDVD and Handbrake proudly raise their middle fingers to Big Media.
I’d look carefully at that covenant not to sue. It may only cover past acts.
No we didn’t.
I just ripped a dvd (that I own) this morning.
Then I encrypted the result, which means I cannot be prosecuted at a later date for the resulting decrypted video.
At no point in this entire procedure was the law, or Real Networks, relevant in any way.
You’re obligated to be a Pirate in the U.S. In Canada was can make copies because we pay royalties on media (CD, DVD blanks etc).
Arrr!
Oh well. MacTheRipper and Handbrake are free— and not going away anytime soon.
Great story, Glenn.
It’s sad to think that even a billion dollar company can’t make some wiggle room against the media moguls. It makes you question what power the public at large has to influence the laws that these companies are essentially writing for themselves. Money talks, and those with more money can make laws that ensure they always have more money.
When you think of it, it really calls into question the rule of law. Look at any country with a sweeping copyright law and you’ll find that nearly every person in that country violates the law on a daily basis. Clearly these people don’t respect that law, and that can have consequences on how they view any law. Not to mention, how can a court enforce a law if everybody is guilty of the crime?
It’s a sad state of affairs, but one I can’t see being fixed up any time soon. As long as somebody with money has an interest in keeping these laws, they will be around, and there are a lot of big industries that benefit from these laws, from music to film to literature to software.
Personally I think your opening line — that RealNetworks “screwed you all” — is a bit (well, actually a lot) unfair. We (I work at Real) spent quite a lot of money fighting the good fight, and for a cause bigger than just our product. We simply lost. If anyone screwed you, it was Judge Marilyn Patel; she had the chance to set a legal precedent that she chose not to take, and you’re right — as a result of that choice, there probably won’t be another challenger.
No offense to the very hard workers at Real, but you didn’t lose; you gave up. The new CEO wanted to be back in bed with studios, and he took the appropriate expeditious course for the future of the business (if there is one) and shareholders.
Real was appealing, and there are many unsettled points of law that I expect could have taken the case to the Supreme Court. The DMCA has several elements that seem distinctly unconstitutional to this layman, based on other suits that SCOTUS has decided in favor of consumers. Not just Betamax, but a host of others, not always on a 5-4 basis, in which the notion of privacy, personal ownership, and fair use were weighed.
Real gave up: it could have spent the next 8 years in litigation, which probably would have been horrible for the firm (cf., SCO Unix), but might have been good for consumers.
Nice Ozymandius reference!
@Anon-18 – No, Real did screw us all by settling and not even trying to appeal to odious Patel decision. Trying and failing would have been one thing we could have repected you for, but not even trying? You won’t convince many people outside of Real with that BS excuse.
I’m working on a solution to all of this that will be fair for everyone. I know it sounds crazy coming from some anonymous post, but keep hope. The answer will present itself shortly. As Gilmore said, “The Net interprets censorship as damage and routes around it.” – (Time December 6 1993)
The Replay boxes’ commercial skip feature is just plain wonderful, it works really well. I rarely watch “Live” TV. Replay coupled with the DVArchive program is heaven as it allows storage and replay to a PC hard drive and you can watch the shows stored on the hard drive on any Ethernet enable Replay box on your local LAN
The real feature that the media industry had issue with the Replay unit was it’s ability to allow the one unit to transfer any recorded content to another Replay box. The feature worked for units on your your local network, and for units anywhere connected via the Internet.
To connect to a box you just needed to know the unit’s Interent ID number to transfer the content. Before the transfer would begin the user on the other end would get a message letting him know another box wanted to send them content. Once they accepted, the remote unit would begin transferring the recoded show in the background. Depending on the length and resolution of the content the transfer could take a couple of days. Both units continued to work during the background transfer but some functions were sluggish.
The were forums where people could request TV shows that they had missed on network TV or shows they wanted to see but didn’t get because they didn’t subscribe to a particular pay TV channel. This is what I believe drew the industry’s ire. Users would just request the show and post the ID number of their box and someone in cyberland would transfer the show.
Since the Replay can record video from composite and coax lines that means not only network and pay TV shows could be transferred but rented video tape and DVD content (Pay Per View and new Video rental releases).
let me make it clear I am by no means saying I agree with the Sonic Blue lawsuit. Nor am I saying piracy is ok, but I think you can see why Replay was in the cross hairs. Although I believe most of the Replay users could be classified and were Fair Use compliant, the media industry saw Replay boxes as a vehicle that allowed distribution of their content to markets it maybe wasn’t intended for, or in some cases wasn’t paid for and in both cases bypassed what the advertisers paid for.
Sonic Blue should be commended for not just rolling over. The unfortunate side effect for them was bankruptcy.
BTW not all the features on all the boxes mentioned in article were disabled. The features where disabled by a series of firmware updates. But boxes that never accepted the updates still have the commercial skip feature and can still transfer stored content to other like boxes as long as the Internet ID is known.
I was sorry to see Replay production go by the wayside as I always thought it was a better product than Tivo. Also the TV channel guide service needed to allow the box to be fully functional is still in operation for anyone who originally purchased the lifetime guide service. Since the service is tied to the box ID and not an individual, you can still find fully functional Replay units on the used market.
How does this affect software products that still offer DVD ripping? I’m thinking of the free home-theatre software projects and like applications.
captcha: “warned catapult” … this does not bode well!
Well, good luck selling products that prevent people from either watching a movie or listening to music. Hope that works out for ya.
It’s real simple for the consumer. I simply refuse to purchase any media that isn’t able to be backed up and archived in my collection. There are plenty of choices from people who sell products that enable customers to listen to music or watch movies. What a novel concept!
Buyer beware! Avoid scams like movies or music that can’t be copied.
I love my ReplayTV – especially the commercial advance feature. But it’s getting harder to keep it now with everything going HD. Wish it could be updated to newer broadcast technology.
While you seemed to be on a good path, when you start with the “only way to get legal copies is to piracy” anything decent your trying to say is lost by making those arguments.
Condoning or applauding piracy immediately invalidates your arguments. We should be fighting for rights, not for the ability to download anything from the internet. Copying a dvd you own for archival purposes is one thing. Copying a dvd you own so you can watch it when you lend it to a friend is wrong. Downloading a dvd you own makes no sense, which is why it isn’t really considered by movie companies.
In addition the link you show “why you should download a dvd” has never made sense to me, I put in the dvd, see the warning screen, hit title menu and on every dvd I own (with the exception of a scrubs dvd I believe) and ever dvd player I have immediately takes me to a title menu where I can immediately play my movie, and yet have special features.
Claiming moral high ground or legality to pirate, is the wrong tactic to take against movie studios, what should be done is illustrating how people rip dvds for private use or similar. But trying to force or allow file sharing will never work.
Hell, Disney and a few other studios have been releasing digital copies with dvds (and dvd and blu ray three packs) for a while now, and yet people still feel the need to pirate their properties? So why should anyone listen to those who are infringing on their properties if it’s obvious they are just trying to justify a selfish desire?
Glenn, thanks for the cool article. Can you please explain why the decision in the EFF case (where you got superhero status) can’t easily be used as a precedent for the rest of us?
Its possible to copy most dvds without using any special tools – only windows media player and explorer.
If you start playing the dvd using windows media player, it authenticates the disc in the drive thus allowing any program to access it. It can then be copied by simply dragging and dropping the folders to your hard drive. VLC player can then be used to play it.
1) Start playing the movie using windows media player.
2) After a few seconds of watching the movie, exit windows media player.
3) Open windows explorer, then drag and drop the folders from the DVD to your hard drive.
4) play the movie from your hard drive any time you want using VLC media player.
This will work on any DVDs that don’t use schemes that purposefully add bad\damaged sectors to the dvds or otherwise disregard the DVD spec.
@ anon#28
If you think, in this day and age, that the minority of content consumers that actually care enough about fair use issues are a large enough force for global media conglomerates to care about, you are dreaming.
i did not take the final statement in this article to be advocating theft of copyrighted content. i took it to mean [there is no hope of billion-dollar media companies ever acknowledging the valid reasons of copying media for personal use. (IE backing up CDs and DVDs to a file incase the original gets scratched)instead of giving up, now that the legal battle is essentially lost, our only course of action is to download illegal copies of works we legitimately own for backup purposes].
this goes beyond movies and music. I know blind people who have to download illegal copies of e-books, because they legal DRM enabled copies they purchased will not function with their blind-reader tools.
the digital copies offered by disney etc are but a small fraction of all movies, and are not in any way available on movies purchased before 2008. what about my dvd of total recall I bought in 1996?
i’ve grown past my high school napster days of stealing all the songs i wanted, and believe its important to pay for what i want. but as others have said, i refuse to pay for an inferior product, that assumes i’m a criminal and limits my use, when i can steal something that i have total control over. or, to demonstrate my personal tactic. i buy the CD or DVD, then use illegal software to rip myself an unfettered copy. i paid my cash, its mine, i’ll do what i want.
The movie industry has lost me as a customer – I don’t enjoy foul language, sex for whatever reason, special effects instead of good script writing. The music industry has lost me as a customer because I don’t enjoy discordant electronic music, screaming and shouting in place of a good singing voice. TV has lost me as a customer because the programming sucks for the most part. There’s little variety, there are too many commercials … ahhhh, a good BOOK, my old 45s and 33 LPs, the yard work, a jigsaw puzzle, a crossword puzzle, a good game of horseshoes or croquet.
You’re in luck: the music scene is rich with talented hands and voices and they’re being pressed on vinyl.
I say “scene” because “industry” connotes just what you’ve described: processed, disembodied voices layered over cookie-cutter twitterbeats threaded with some cloying melody just so you won’t forget to buy the blasted thing. And it sounds like you’re immune to this approach. Guess what? That puts you quite ahead of most listeners.
Now dive in! There’s a whole world of active musicians out there for someone with your tastes: Neko Case, Stephin Merrit, Chan Marshall, Buried Beds, Spaghetti Western String Company –these artists are accomplished songwriters who prize a good voice not just in timbre but in vision.
Heck, just enter all of the above names into a new Pandora playlist. You’ll be treated to an entire constellation of related artists. No sleuthing required.
I’ve been where you are: the plateau of feeling like everything’s been done. Prizing the old tech over the new (I was planning to go to 78s!). I just wanted to share the good news: that your technology preference doesn’t lock you out from new music (vinyl sales have actually been rising) and that there are always new ideas forming in music. It’s just gotten a little harder to find them.
Great article. Iv’e noticed over the past year or so some DVD’s come with an “unlock” code which permits the consumer to download one copy of the DVD. Within the past few months or so the consumer gets an “unlocked” DVD as well as the regular DVD…which sound like a concession by producers to the fact that consumers will “rip” no matter what. Not all DVD’s have this feature their price is the same. I am unsure if the unlocked DVD allows access to all the content of the original DVD or just the movie itself. I will admit I am ignorant to what the full meaning of you article is but, it seems this is a step in the right direction. I would appreciate any info you may have about this.