RealDVD or StealDVD?

RealNetwork Home Entertainment Inc.'s (RNHE) product called RealDVD has met with serious opposition from Hollywood. This product permits you to "rip, burn and organize your DVD collection, which usually is armed to the hilt with DRM restrictions."(See ZDNet). Greg Goeckner, General Counsel for the Motion Picture Association of America (MPAA), referring to RealDVD as StealDVD, has alleged that the RealDVD "violates the law and undermines the hard-won trust that has been growing between America’s movie makers and the technology community." MPAA filed for the issuance of a temporary restraining order against RNHE from selling its RealDVD. (See Statement)

RealDVD, MPAA claims, is in violation of the circumvention provisions (manufacture and trafficking) under the Digital Millennium Copyright Act (DMCA). Section 1201(2) of the DMCA prohibits the manufacture, or distribution to the public, of devices/technology that are "primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title..." “Circumvention of technology” means to descramble a scrambled work, decrypt an encrypted work, avoid, bypass, remove, deactivate or impair technological measure, without the authority of copyright owner. MPAA alleges that the RealDVD "illegally circumvents this copyright protection system" and that the product use is not one that is "intended" by a CSS license.

CSS stands for Content Scramble System. This is encrypted into the DVDs to prevent unauthorized reproduction and distribution of the copyrighted material within the DVd itself.

RealDVD, in expected retaliation, filed for a declaratory judgment that it is in compliance with the "DVD Copy Control Association’s (DVDCCA) license agreement by retaining the “content scramble system” used to protect DVDs," and has further enhanced it "with an additional layer of digital rights management protection." (See Digital Daily)

The main premise of the dispute is whether DVDCCA's license permits RNHE to have a product like RealDVD that allegedly circumvents technological protections?

RNHE is hedging its bet based on the recent decision in DVDCCA v. Kaleidescape where Judge Leslie C. Nichols found no breach of contract because "nothing in the DVDCCA licensing agreement prohibits the development of products that allow users to copy their DVDs." This matter has been appealed by DVDCCA.

DVDCCA's in its opening brief appealing this decision explains that the CSS License is structured as followed:

A General Specification is where the important provisions are tucked in i.e."crucial protections against unauthorized copying of DVD content, including, the requirement that when a machine plays back DVD content for viewing, the physical DVD itself must be present in the device." DVDCCA contends that the Court's interpretation that General Specifications are not part of the Technical Specifications, is in error. This addresses the contractual dispute.

The DMCA issues will depend on how the product is technologically structured; whether it was created to enable circumvention. RNHE insists that it has two layers of protection, over and above being in compliance with the the CSS requirement in the license.