SAN FRANCISCO – A federal judge here Thursday or soon thereafter is likely to conclude RealNetworks' DVD-copying software is unlawful, and therefore should be permanently barred from distribution.

That's the correct interpretation of the Digital Millennium Copyright Act. Yet we think it's offensive that the 1998 act produces the absurd result that consumers are considered hackers and copyright scofflaws just for duplicating DVDs for personal use.

By suing RealNetworks over the RealDVD-copying software, the Hollywood studios fear losing control of the DVD like the music industry did with the CD.

It's OK to copy music from CDs, for example, and place it in an iPod. Yet, it's illegal to do the same with a DVD. When it comes to the DVD, there's not even a question of fair use.

How can the DVD and CD be treated so differently? Answer: The Digital Millennium Copyright Act, which protects the DVD but not the CD.

Hollywood pushed hard for the DMCA, in part to produce the DVD. The studios were savvy enough to have seen how easy it was to duplicate the CD, which was not encrypted. Attempts to lace CDs with Digital Rights Management had failed.

But the DVD was different. It was born with encryption, now called the Content Scramble System. It is designed to prevent duplication. Under the DMCA, gadgets and software allowing duplication of encryption-protected works are prohibited.

That's because the DMCA outlaws circumventing encryption to duplicate copyrighted works. It also forbids trafficking in circumvention products – although plenty of underground duplication solutions exist.

That brings us back to the ongoing litigation between the Motion Picture Association of America and RealNetworks, which is expected to conclude as early as Thursday. Hollywood fears that, if U.S. District Judge Marilyn Hall Patel blesses RealNetworks' DVD copying software, which allows only one copy of a DVD to be made, the studios' stranglehold on the DVD would be forever lost.

A RealNetworks victory would send the message to the general public that it's OK to copy DVDs.

But DVDs cannot be copied without circumventing encryption, although RealNetworks claims its copying software is covered under the Content Scramble System license it acquired from the DVD Copy Control Association.

Circumventing encryption is barred by the DMCA. This situation should be changed to allow the public the lawful right to make backup copies of DVDs – those discs that children fling around like Frisbees and lick like lollipops.

RealNetworks is making the silly argument that its RealDVD software does not circumvent encryption technology. But what's sillier is that RealNetworks finds itself in a courtroom, facing monetary sanctions, for producing a product that should be legal.

Photo: john_a_ward

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