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As technology continues to advance, copyright owners must continue to be ever vigilant for new avenues of infringement. The Motion Picture Association of America (MPAA) recently filed suit against RealNetworks, Inc., the creator of the RealDVD software, seeking an injunction to prevent this software from being distributed. The suit is based mainly on a contract claim arising out of a license the MPAA gave to RealNetworks to create a player, although there is also a claim under the DMCA. This software allows a user to make a back-up copy of any DVD while still maintaining some of the protections required by the DMCA. RealNetworks, of course, claims that this software is designed to allow DVD owners to make back-ups of DVD’s they already own, while the MPAA claims that the software will be used to rip copies of rented and borrowed movies. Sounds like a job for the Sony doctrine.
The software’s function seems similar enough to a VCR to get the same sort of fair use protection those devices were given in the Supreme Court’s decision in Sony Corp. of America v. Universal City Studios Inc. In Sony, the Court held that device manufacturers will be immune from liability for secondary infringement if the device has substantial non-infringing uses. However, in Sony, the activity was considered time-shifting, or taping television shows to be watched later, while the RealDVD software seems to be more useful for creating a library, a use the Court did not address in Sony.
Representatives of RealNetworks have made some interesting choices in their communications with consumers, especially considering the decision from MGM Inc. v. Grokster Ltd., where the Court found that the Sony decision did not protect a device manufacturer who actively induced third-parties to infringe. Rob Glazer, the CEO of RealNetworks, was once quoted as saying “[i]f you want to steal, we remind you what the rules are and we discourage you from doing it, but we’re not your nanny.” Nanny or not, it sounds like RealNetworks was planning on selling a lot of software to people who will use it to infringe, and if Grokster is any guide, courts don’t like defendants who mainly profit from their customers’ infringement.
– Josh Bohannon
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