Fair Use? ‘Not under the DMCA,’ says MPAA
p2pnet news view | MPAA News:- The battle between one online corporate distribution company against four other online corporate distribution companies continues.
“Beleagured RealNetworks, which recently apologised for disappointing users in the past, and which wanted ‘another shot’ because ‘we’ve cleaned up our act,’ in 2008 blew 11.2 million on the launch of Rhapsody North America, according to a 10K filing,” said p2pnet recently, going on:
“It also spent $44 million in advertising with MTVN, said paidContent earlier in the month.
“With that in the background RealNetworks, its RealPlayer for years plagued by revelations of one critical security problem after another, said it didn`t think it’d be sued by Hollywood`s MPAA for marketing DVD copying software.”
However, the MPAA, fronting for Time Warner, Viacom, Fox, Sony, NBC Universal and Disney, took a different view, saying in a lawsuit that Real’s RealDVD, created to allow Windows users rip DVDs, infringes copyrights.
Now, continuing its lawsuit against Real, Hollywood is asserting fair use is no good as a mechanism of defence and to, “prove its point, the MPAA relied on RealNetworks’ own testimony in a prior case,” says CNet News, going on US district judge Marilyn Patel (right), who’d temporarily banned sales, will decide if Real can once again start selling RealDVD.
Patel asked MPAA lawyer Bart Williams if a consumer has the right to copy a DVD purchased for personal use, says the story, going on »»»
“Not for the purposes under the DMCA,” Williams said. “One copy is a violation of the DMCA.”
Then Patel tried again. This time she asked about a hypothetical device that sounded very much like Facet, the DVD player that Real is planning to release that copies as well as plays DVDs. Real says that the copies of movies made by Facet are locked in the box and can not be distributed illegally.
“What if Real or someone made a device that allowed for making a copy only to the hard drive that is on that machine?” Patel asked Williams. “And you can’t make another copy from that. Would that be circumvention of the DMCA? Would it in fact mean that it really was sufficient fair use under the DMCA?”
“Yes it would be circumvention,” Williams replied, “and no it would not be fair use. The only backup copy Congress envisioned was archival, that you would never use until such time when your main computer wasn’t working…Congress would not have gone through the process or have this process if you’re going to say there is some fair use rights that allows you to circumvent.”
Williams then told the judge that Real had argued against fair use in a legal case the company brought against Streambox nearly 10 years ago. Real filed suit against Streambox for creating the Streambox VCR, a system that enabled users to copy Real’s streaming music and video. Streambox argued that users were making fair use copies. Real sought a temporary restraining order, just as the studios have in the current case, which was granted.
“There is no fair use defense (for Streambox against the DMCA),” Real argued in that case, court documents show. “The DMCA does not have a fair use exception allowing individuals to circumvent access and copy protection measures.
“In enacting the DMCA,” Real continued, “(Congress) expressly outlawed products such as the (Streambox VCR) that serve to promote the unauthorized copying and distribution of copyrighted works.”
For this reason, Williams asked the judge for an estoppel ruling against Real. This is a legal doctrine that would bar Real from arguing for fair use because it had made a counter argument — and prevailed — in a prior case.
Real is vulnerable to DMCA violation claims. The copyright law prohibits anyone from cracking copy protections.
Even if Patel rules that Real did not circumvent Content Scramble System, the studios encryption technology, which the MPAA claims it has, Real has to prove that it did not circumvent ARccOS and RipGuard. These are copy protections measures some of the studios use as an added layer of protection and are not covered in the CSS license Real obtained from the studios.
In previous court proceedings, “MPAA lawyers presented e-mails and testimony that showed Real worked hard to find a way to get past ARccOS and RipGuard, including the hiring of an overseas company that the MPAA alleges is run by ‘Ukranian hackers’,” says CNet News, adding:
“There is no telling how long she will take to issue a ruling.”
apologised -RealNetworks – `give us another shot, February 24, 2009
p2pnet – RealNetworks `surprised` by MPAA lawsuit, March 24, 2009
paidContent - RealNetworks Details Promotion Costs For Rhapsody North America, March 2, 2009
infringes copyrights – Real Networks Sues Studios on Antitrust Grounds, May 13, 2009
CNet News – At RealDVD hearing, MPAA says copying DVDs never legal, May 21, 2009
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May 22nd, 2009 at 10:58 am
Real, your attitude towards your competitors (Streambox) finally backfires!
May 22nd, 2009 at 1:24 pm
anyone: “Would a boycott of your clients’ releases, both DVD/VHS and cinema, resulting in massive revenue loss that cannot be fabricated but actually calculated, help illustrate your inability to adapt to modern times?”
Williams: “That is a clear violation of the DMCA, circumvention is a violation of the DMCA, the copying of content from the DVD or cinema screen to your brain is a circumvention of the DMCA, and is illegal.”
anyone: “You didn’t answer the question asked. Next question, how do you justify paranoia about loss of revenues due to filesharing and piracy, where people actually make a profit by stealing and selling the physical product, with the massive profits your clients’ seem to make each quarter? There seems to be a contradiction.”
Williams: “That also is a violation of the DMCA. No copying is permitted, not even a fraction of a second, as there is no such thing as fair use except when it works to our benefit. Our profits are not really profits, we’re losing TRILLIONS of dollars each MONTH due to people stealing our movies, via filesharing or piracy or simply viewing them and describing the movies to their fellow thieves [consumers]. The record profits are eaten up by our litigation proceedings in attempt to reduce the loss of revenue due to stealing our content!”
Congress should have actually read the DMCA and actually viewed presentations by more than fear mongering lobbyists. Look at how the Swine Flu fears spread like wildfire. People believe almost anything that can have a negative spin to it. Perhaps those with political power should consider taking a step back and think for a moment, ensure they receive equal quantities of information from BOTH sides of the fence, and finally have a non-partisan party help in the analysis of BOTH piles of information.
At least then we’d have proper analysis before passing laws based-on rubbish claims that could not be proven even if hand-waving was an acceptable form of proof by induction.
May 22nd, 2009 at 3:36 pm
the mpaa need to stamp out this practice once and for all. im sick of it
May 22nd, 2009 at 5:02 pm
Hey Real, it’s interesting how those copyright arguments can come back to bite you in the ass, isn’t it?
May 22nd, 2009 at 6:10 pm
” the mpaa need to stamp out this practice once and for all. i’m sick of it “. You must be really naive.
The US congress is bought and bribed by the MPAA and RIAA with kickbacks and bribes so Naive people like yourself will have to buy amother dvd if you want a backup copy if you are not tech savvy and you won’t be banging their balls ripping their poopy movies off….. You know dvd decrypters are so common on the internet and many times for free the movie studios would not even make any money off the decryption software or otherwise. Face it as the copyright law is written is the US making backup copies is illegal. Both the democrapic and republitard party prefers that way because they are cum drunk from the MPAA and RIAA’s kickbacks and bribes , get it ?
June 28th, 2009 at 8:05 am
I believe the DCMA is going too far and is being used to silence critics of corporations such as eBay who server a notice on my host because the site I run at ebuster,co,uk contains documents relating to wide scale fraud on eBay and as such it is important that pages that are displayed are not tampered with.
This time I had some luck since eBay picked on a fake login page I displayed after I had asked eBay on several occasions to get the page remove and from what I can understand they are upset about the eBay log at the top of the pages but itâs not like the site trying to compete against eBay and provides hundreds of links back to eBay.
The reason I present copies of pages is because eBay often remove pages where a dispute is involved so just how can anyone present case of wide scale fraud when it is becoming impossible to present evidence without have a gag order place on your host.
Yes I understand the reason for the DCMA but using itâs powers in this manor strikes at the heart of democracy and is allowing eBay to do as it pleases and in some cases it is not possible to remove the logo as some of the pages displayed on the site have been hijacked by script injection using hexadecimal code to overwrite the original page and therefore making it all but impossible to remove the eBay tm logo and no I donât have a zillion$ to get involved with eBays lawyers but I do have freedom of speech so if that involves moving the site offshore then that is what I will do