RealNetworks set to file appeal in RealDVD case

Real likely doesn't have much chance of removing a ban on sales of DVD-copying software but there's little cost to the company to try.

RealNetworks, a maker of media software, has said it will file an appeal and ask that a district court decision to ban sales of its DVD-copying software, RealDVD, be overturned.

RealNetwork's Notice of Appeal
Copy of RealNetwork's Notice of Appeal. Click on the image for a PDF.

In August, a federal district judge issued a preliminary injunction to halt sales of the $30 software , which enables users to create digital copies of DVDs and then store them on a hard drive. Real said in court documents that sometime before November 9, the Seattle-based company will file an appeal with the U.S. Court of Appeals for the Ninth Circuit.

The film studios claimed in a 2008 lawsuit that RealDVD and Facet, Real's proposed DVD player that copies and stores films, violated copyright law. After hearing arguments from Real and the studios, U.S. District Judge Marilyn Patel agreed.

Her decision to halt sales of RealDVD and Facet after hearing the evidence in the case marked an important victory for Hollywood. Critics say it gives the studios absolute control over the functionality of DVD players. That means, according to groups such as the Electronic Frontier Foundation, the studios can and will thwart innovation .

The Motion Picture Association of America, the trade group representing the studios, says it has worked closely with technology companies to legally deliver digital films and shows. The MPAA denies being an enemy of innovation.

The injunction hearing also attracted a lot of attention because the case was supposed to help determine whether consumers possess the Fair Use right to make digital copies of their film discs. But in her injunction ruling Patel left that question for others to answer.

It's important to remember, Real's appeal will address only the injunction and the case itself will continue to move toward a jury trial unless it is stayed pending a resolution of the appeal, according to Denise Howell, an appellate and technology lawyer.

Real hasn't indicated what arguments it will make. Regardless, Real's chances of getting the decision overturned aren't good.

"What they're going to argue is that somehow the legal basis for the injunction is wanting," Howell said. "They will say that there has been an error of law somewhere along the way but they're going to try and undo the injunction. Real is facing an uphill battle."

There's not much lost in giving it a try, as the costs of an appeal are relatively a drop in the bucket compared to what Real has already spent, according to legal experts.

As far as appellate courts go, the Ninth Circuit has a long record with big technology cases, Howell noted. Probably the most important case was MGM vs. Grokster. In that case, the Ninth Circuit issued a favorable ruling for Grokster but it was later overturned by the U.S. Supreme Court.

 

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