Judge keeps RealDVD restraining order in place

(I took a closer look at the "Napster judge" presiding over the case in this story.)

SAN FRANCISCO--RealNetworks on Tuesday failed to convince a district judge to lift a restraining order and allow the company to start selling RealDVD again until she learns from experts, including the court's, how the software functions.

That means RealDVD, which enables users to copy a DVD and store it on their hard drive, is unlikely to reappear in the marketplace for at least another month and perhaps longer. U.S. District Judge Marilyn Patel indicated she wouldn't be available for another hearing until after Nov. 17.

"I am extending the temporary restraining order because I'm not satisfied in the fact that this technology is not in violation," Patel said following the three-hour hearing. "There are serious questions about copyright violations. There are questions about violations of the (Digital Millennium Copyright Act), and violations of these companies' agreement."

Things haven't gone well for RealNetworks' efforts to launch RealDVD. Last week, an hour after RealDVD hit the market, the company filed a preemptive lawsuit against the top motion picture studios. RealNetworks wanted the courts to rule that the software didn't violate any laws.

The Motion Picture Association of America (MPAA) filed its own suit a few hours later and on Friday obtained a restraining order. Hollywood claims RealDVD violates the DMCA by circumventing the anti-copy protections on DVDs to enable consumers to copy movies. The software also violates RealNetworks' agreement with the DVD Copy Control Association (DVDCCA), the group responsible for protecting DVDs against piracy, according to lawyers for the MPAA.

The arguments
James DiBoise, RealNetworks' attorney appeared to get the better of the movie industry early on in the hearing. He told Patel that RealDVD enables consumers to copy a film, store it on a hard drive and does so without cracking any of the copy protections found on a DVD. There isn't anything in the company's agreement with the DVDCCA that prohibited what RealDVD does, he argued.

"There is nothing in the agreement that says a physical disc has to be playing in a physical drive," DiBoise said. "That's not our fault."

The MPAA's attorneys acknowledged that there isn't anything specifically written against what RealDVD does, but they argued that the law requires RealNetworks to stay within the parameters of what the contract authorizes. And what RealDVD does isn't authorized. Bart Williams, the attorney representing the MPAA attacked RealNetworks' claim that the software didn't remove some of the copy-protections.

The MPAA appeared to score points with Patel by pointing out RealDVD enabled consumers to make copies of movies they didn't own. Patel asked DiBoise whether people could make movies they owned and he said yes and it was legal under Fair Use. She asked whether the software allowed people who just rented a film to create and keep a copy. DiBoise responded: "Yes, but to watch it and not do anything else with it."

DiBoise implored the judge to lift the restraining order. He said RealNetworks anticipated that half the revenue RealDVD would generate would come between now and the holidays and that the order was causing serious financial harm to the company. On the other hand, sales of RealDVD wouldn't cause any significant hardship to the movie industry. He pointed out that there were lots of products available on the market that enabled people to rip movies.

Williams disputed this. He told Patel that not only would buyers of RealDVD have the ability to make unauthorized copies of the films they rented but the public would get the impression that this kind of software was legal.

In denying DiBoise's request to lift the restraining order, Patel chided RealNetworks for "rushing to market" before deciding the issues in court first, as the MPAA had suggested they do.