TRO hearing today on RealDVD
Federal Judge Marilyn Patel will hear arguments today on whether Real should be temporarily restrained from selling its RealDVD copying software. The software has been unavailable since Friday, when the Hollywood studios won an emergency halt on sales, a move that Real claims caused them "irreparable harm."
In arguing against a temporary restraining order, Real claims that it is complying with the terms of its DVD-CSS (Content Scrambling System) license and that the studios have no claim under the Digital Millenium Copyright Act (DMCA). Real also argues that the studios fail to meet their burden for an injunction because RealDVD causes no irreparable harm, if any; the "balance of hardships" weighs against injunction; and public interest "miliates" against injunction.
RealDVD does not circumvent CSS technology
In their counterclaim, the studios claim that Real was only licensed to create a DVD player not copying software. Real says it violates no part of the CSS license. Some examples: Contrary to claims, Real says it does not violate the drive-authentication requirements. Real also says it accesses the CSS "content keys" in the required manner.
RealDVD does not strip or remove any CSS encryption from an image of the DVD that can be created as a backup copy on a user's storage medium
Real also argues that CSS does not prohibit making a back-up copy of a purchased DVD. In a footnote, Real cites a declaration by Edward Felten that CSS doesn't even prohibit the mere copying of a DVD. That's what happens whenever a user puts a DVD into a computer. In any case, Real is not an unauthorized licensee. "The CSS technology simply does not prevent licensees from making backup copies." And neither does the license, Real asserts.
This was the holding of a California court in DVD-CCA v. Kaleidescape, in which a California court held that the license agreement doesn't prohibit copying. Since the CCA considered fixing the agreement after that decision, it's clear that there is no prohibition on copying, Real said.
DMCA claims
Real also argues that it's not violating the DMCA's ban on circumventing copy-protection schemes because it doesn't take any actual access steps to get around the copy protection. Real isn't seeking "access" to a work; it's gaining access through licensed means.The hearing is scheduled for 2 pm today, so we'll just have to see if Real's arguments hold water. Since this is a TRO, not a permanent injunction there's a fairly high chance the judge will grant it pending a full hearing on the permanent.