Real Networks Appealing DVD Copying Software Verdict

7 Oct, 2009 By: Erik Gruenwedel

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Real Networks has put in motion an appeal of a U.S. District Court judge’s decision denying the Seattle-based media company the right to sell its RealDVD copying software.

The notice to appeal statement, filed Sept. 10 with the 9th Circuit District Court in San Francisco, seeks to overturn judge Marilyn Patel’s Aug. 11 ruling that found the RealDVD software circumvented a technological measure that effectively controlled access to or copying of the studios’ copyrighted content on DVDs.

Patel’s order effectively barred RealNetworks from selling RealDVD in any form, including its Facet DVD player, which could create and store DVD copies.

RealNetworks in 2008 filed a pre-emptive lawsuit against the major studios and the DVD Copy Control Association, seeking court approval for its $30 RealDVD software.

The studios in turn sought a temporary injunction, which was granted by Patel shortly after RealDVD went on sale in early October 2008. The software allowed users to make a digital file copy of a commercial DVD movie and save that data on up to four PCs.

The studios had argued that RealDVD couldn’t differentiate between a rented or purchased DVD, thereby opening the door for “rent, rip and return” abuses.

The 9th Circuit is considered one of the most liberal courts in the country. It famously ruled in favor of music file-sharing site Grokster when it was sued for copyright infringement by the music industry. That decision was overturned in 2005 by the U.S. Supreme Court in a unanimous decision.

Real Networks said it plans to formally file its appeal before Nov. 9.

Fred von Lohmann, senior staff attorney with the Electric Frontier Foundation, a San Francisco-based civil liberties organization, thinks the heart of the RealDVD case will likely be contract interpretation.

In addition Lohmann said an appeal is cheap (less than $75,000 in attorney’s fees) compared to the trial involved in the preliminary injunction.

“So, if you’re $6 million in already, what’s to lose?” Lohmann said.

Real Networks said it plans to formally file its appeal before Nov. 9.

A representative from the Motion Picture Association of America, which handled litigation on behalf of the studios, was not immediately available for comment.

 

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