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'Napster judge' thumps RealDVD, but will she ban it?

Judge Marilyn Hall Patel took Napster out, but in another case she ruled computer source code is protected under free speech. She has lots of questions about RealDVD.

Inside Marilyn Patel's courtroom on Tuesday, it was obvious the federal judge was concerned by some of the things she heard about RealDVD.

The $30 software enables people to copy DVDs and store their contents on a computer's hard drive. Lawyers for the movie industry told the judge at a hearing in San Francisco that by selling the technology to consumers, RealNetworks violated copyright law and that the software could cost the studios billions in lost DVD sales.

"She was clearly concerned about the possibility the software could lead to copyright theft," said Fred von Lohmann, a spectator at the trial and a senior attorney for the Electronic Frontier Foundation (EFF), a group that advocates for the interests of Internet users.

RealNetworks was in court to try to convince Patel to lift a temporary restraining order that forced the company to stop selling RealDVD. I have to score Round 1 in favor of the movie industry. Patel refused to lift the order, telling the courtroom there are "serious questions" about whether the software violates copyright law. She worried about whether people would make unauthorized copies of DVDs, saying "it's impossible to bring back copies once they're out in the market."

The big film studios, which filed a copyright suit against RealNetworks last week, appear determined to prevent consumers from creating digital copies of their films. The way they see it, the ability to copy a film and store it on a hard drive is just a half step away from sharing movie files across the Web. Of course this is already being done at peer-to-peer sites, and with the help of ripping software that anyone can obtain with a simple Google search. But the people who actually rip films are still a small fraction of the population. The studios want to stop the practice from going mainstream.

From Napster to protecting source code
How this issue will be decided is hard to gauge because of Patel's mixed record on high-profile tech cases.

Patel is referred to in Silicon Valley as the "Napster judge." In 2000, Patel ruled that Napster was not entitled to protection from copyright violations because it wasn't an Internet service provider as defined by the Digital Millennium Copyright Act (DMCA). Her decision was upheld by the U.S. Court of Appeals for the Ninth Circuit, and in March 2001 she ordered Napster to remove copyrighted music.

"She has a reputation of being a very smart judge," von Lohmann said. "She is highly respected. She's not known as a technology judge in the way judges in San Jose are. She's clearly not afraid of technology."

In another case, Patel found in favor of a computer science professor who sued the U.S. government over restrictions it placed on the exporting of "dual use" cryptographic technology. The professor, Daniel Bernstein, held that such a restriction violated his First Amendment rights. Patel ruled that computer source code was indeed free speech and thus protected. Her decision was once again upheld by the Ninth Circuit.

At Tuesday's hearing, Patel made clear that she wants to understand how RealDVD's technology works before going forward. Not only does she want to hear testimony from experts representing RealNetworks and the film industry, she also said she will consider appointing her own: the same special master she used during the Napster trial, A.J. "Nick" Nichols.

Patel began considering the idea of hearing from experts after RealNetworks and the Motion Picture Association of America (MPAA) disagreed on how RealDVD worked.

Who has the advantage?
Nobody knows better how the software functions than RealNetworks. The company may have an advantage in illustrating for Patel how RealDVD can copy DVDs without circumventing their protections in the way the MPAA claims. MPAA attorneys said that DVDs come with four layers of protection and that RealDVD retains only one when making a copy.

Rob Glazer RealNetworks

"That's a very biased way of expressing it," said von Lohmann, adding that it's not clear whether all of the so-called layers are protected under the DMCA. "Yes, four things do exist on the DVD but describing them as layers of protection and saying that RealDVD throws away three is not a fair description."

When it came to defining for the judge how the software posed a threat, lawyers for the film industry appeared to be much more successful. They told her anyone renting a movie could use the software to create and store a copy and RealNetworks' attorneys acknowledged this. To prove that RealNetworks knew consumers would use the software in this fashion, the MPAA's attorneys showed the judge a quote from the company's CEO Rob Glazer about RealDVD.

"If you want to steal, we remind you what the rules are and we discourage you from doing it," Glazer was quoted, "but we're not your nanny."

Patel won't hold another hearing until after November 17.