As Expected, Judge Still Bans Real From Selling RealDVD

from the no-surprise dept

This will come as absolutely no surprise to folks who have followed Hollywood's self-defeating battle against Real Network's RealDVD offering. If you don't recall, Real announced a product that would let users back up a DVD in their possession. Now, it's important to understand a few basic facts: under copyright law, you are allowed to make a personal backup of something like a CD or software. That's been found to be perfectly legal fair use. So, what's the problem? Well, one of the worst aspects of the DMCA is that it includes a totally unnecessary (and constitutionally questionable) anti-circumvention clause. Basically, the DMCA says that if you circumvent (or offer tools to circumvent) any kind of DRM, you've broken the law (and here's the ridiculous part) even if the actual copying you then do is perfectly legal. Yes, it's like saying that breaking into your own house is illegal. It makes no sense at all.

Real tried to get around this issue in a clever way. It figured that if you really were limited only to being able to make a backup copy (rather than an unencrypted copy that could be passed around), then a court would have a hard time finding it illegal. And, in fact, it had some legal precedent on its side. Two years ago, a court found that Kaleidescape, makers of a super high-end DVD jukebox, was perfectly legal, since the device was clearly only designed to make personal backups, and couldn't be used to distribute content.

Unfortunately, it appears that judge Marilyn Patel (who was also the judge who killed the original Napster) disagrees. She's issued yet another injunction blocking Real from selling RealDVD, saying that it violates copyright law. Again, this isn't a surprise. She had issued an initial injunction last year, and seemed quite skeptical of Real's arguments earlier this years, declaring:
"They have the copyright. That's the issue here right? They have the copyright. They have the right to exclude."
This is only partially true. They have some rights to exclude, but those rights are limited. The question is whether or not Real's actions fall outside that limit. But Judge Patel seems to disagree entirely with the Kaleidescape ruling, on that point.

Of course, the real issue here is how pointless a move this is for Hollywood, anyway. There are tons of DVD ripping software offerings out there -- which don't even have the limitations that RealDVD does. I can't fathom who would buy Real's product in the first place, knowing that there are much better, non-limiting products out there. Yet, here was a product that was doing everything it possibly could to play within the rules to make DVDs more valuable by letting people make use of their legal right to back up a DVD they had purchased, and Hollywood wants to crack down on it? The only thing that will do is drive more people to use the other versions of DVD ripping software out there. So, congrats, Hollywood, on pushing more people -- people who wanted to be good, legal, customers of your DVDs -- to go around the law to back up their DVDs, leaving them more open to file sharing.

It's difficult to fathom how anyone could think this was a smart move by Hollywood, or even how this is a "victory" for Hollywood.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Poster, Aug 12th, 2009 @ 4:01am

    I'm really wondering why no one has addressed this obvious flaw in the DMCA. I mean, it's been pointed out to people for years, and yet nobody's done anything. I know it's the US Government, but still.

     

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    Thomas (profile), Aug 12th, 2009 @ 4:03am

    How much was

    the judge paid for the ruling? Obviously the studios knew her price. Unfortunately they hav more money than Real.

     

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  •  
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    kirillian (profile), Aug 12th, 2009 @ 4:51am

    Spammers

    Are the spammers just trying to let us know what their price is? Apparently, he likes Ed Hardy's clothes? I think...

     

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    •  
      identicon
      Ilfar, Aug 12th, 2009 @ 5:20am

      Re: Spammers

      Y'know, I got that idea myself, for some reason... ;)

      Movies on DVD are just annoying - A laptop that can run Spore (albeit at the lower end of the graphics settings spectrum) can't watch a DVD without some stuttering in places. I can't watch a movie off DVD on battery power, it will run out after about an hour (spinning the disk, CPU usage through the roof). Then all the free DVD players tend to be crap (VLC excepted, but all the stuff that comes with a laptop is absolute rubbish). I won't even bother complaining about zoning. :P

      DVD's single greatest boon is that I don't need to swap CDs four times installing games now.

       

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    Name Me This or That Or Whatever, Aug 12th, 2009 @ 4:52am

    If a product is uncopyable as it is, your right to make a copy ends where you cannot make the copy. DRM would be no different from copyguard or similar products that make it difficult to make copies. Copyguard didn't infringe rights.

    Mike, you make a very broad and wild assumption, that your personal rights trump everything else. Your personal rights bump up against other's rights and they may stop sooner or later than you expected.

    Remember, real life isn't a theoretical debate by two under worked professors, it's real life.

     

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      The Infamous Joe (profile), Aug 12th, 2009 @ 5:07am

      Re:

      ..and real life is that there are many, many, many dvd rippers out there who rip dvds to a totally unencrypted and easily distributable format. The one company that tries to play by the rules gets attacked from the people who made the rules they're trying to follow.

      That's not a theoretical debate, it's stupid.

      Try to follow along, pal.

       

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      •  
        identicon
        Anonymous Coward, Aug 12th, 2009 @ 5:12am

        Re: Re:

        Everyone else is speeding, so I want to speed too and not get a ticket.

        I'm following along, and trying really hard not to laugh at justifications for breaking the law.

         

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          Killer_Tofu (profile), Aug 12th, 2009 @ 6:10am

          Re: Re: Re:

          The DMCA is a waste of the paper it was written on. The only decent part of it is the part that should not have to be there (common sense part about when somebody is not the offender, they cannot be held liable).

          Since it seems to so clearly go against my right of first sale (which I would say is also a common sense law) then I choose to ignore it.

          If you want to follow it, fine, but I sir will not drink the purple cool aid you are dishing out.
          Once I buy something, I will do with it as I please, and anyone trying to tell me otherwise can get bent.

           

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          ChrisB, Aug 12th, 2009 @ 6:26am

          Re: Re: Re:

          No. It is like trying to go 55 mph on the highway but the car you bought has a regulator that limits your speed to 35 mph. So you hack your car to disable the regulator, so you can go the legal speed limit.

           

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            Anonymous Coward, Aug 12th, 2009 @ 10:03am

            Re: Re: Re: Re:

            "No. It is like trying to go 55 mph on the highway but the car you bought has a regulator that limits your speed to 35 mph. So you hack your car to disable the regulator, so you can go the legal speed limit."

            Even better: They set the law so that you can only go to 55 mph. Any circumvention tool that allows to break said law is outlawed. Since cars would allow you to break the speed limit, cars are outlawed. So a company makes a car, and adds a regulator so you can't go faster than 55. Then a judge says, "nay, that's still wrong. Ha ha!" and forbids you selling the car.

             

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          Anonymous Coward, Aug 12th, 2009 @ 9:55am

          Re: Re: Re:

          Not really, it's more like, oh they set the speed limit to 55. We're going to make a car that can go to 55. Oh look, it's illegal to make a car that can reach 55. Busted!

           

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      Anonymous Coward, Aug 12th, 2009 @ 5:13am

      Re:

      That is quite possibly the dumbest thing I have ever heard.

      If you say something out loud, I can't copy it as is. I need a tool, e.g. paper and pencil, audio recorder, video recorder, to copy it.

      If I'm standing in a meadow and see a fantabulous butterfly, I can't just blink my eyes and make a copy of it. I need a tool, e.g. paper and pencil, camera, video recorder.

      If I own a DVD and I want to back it up, I need a tool.

      Also, not speaking for Mike, but for myself, I'd prefer that my personal rights stopped where they are supposed to and not where a sh1tload of money and lawyers decide they ought to.

      All I've got is real life, and it's a little too important for gangs of lawyers and clueless judges to be deciding what I should and shouldn't be able to do based on their theoretical debates.

       

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      Mike C. (profile), Aug 12th, 2009 @ 8:19am

      uncopyable issues

      There are actually two issues here:

      My biggest problem is that they made the product uncopyable to begin with. If I have a choice between a DRM version and non-DRM version, I will almost always go for the non-DRM version even if it costs more. I have kids and kids aren't always as careful with stuff as I'd like them to be. As such, I like to make a copy and "use" my copy instead of the original. If something happens to it (e.g. gets scratched), I destroy it and make a new copy to use. I do this because it only takes a single small scratch to completely ruin a disc. Compar this to other forms of entertainment or even life in general where an imperfection does not ruin the whole work:
      - page ripped in a book, you can still read around it and get an idea of what happened.
      - a few bad pixels on a TV or computer screen, you can still see bulk of the image being displayed.
      - a few bad sectors on a hard drive, you can still save data to other areas.
      - a scratch in the side of your car, you can still drive it.

      But when it comes to shiny plastic discs, if you get a scratch, Hollywood seems to want you to go buy a new replacement. The concept of backing up or archiving digital information is something everyone is told to do. If they won't allow us to back up the media and the chances of getting a disc-ruining scratch are higher than the average piece of merchandise, then how economically valuable are these discs in the first place? I really want to support the artists through buying their product, but not if it means re-purchasing the same product every year because of their flimsy design.

       

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        Mike C. (profile), Aug 12th, 2009 @ 8:32am

        Re: uncopyable issues

        Forgot issue 2... duh:

        The other issue is what other people and Mike have already posted. Real was trying to work WITH the system... to create an application that limited the copying to just what was allowed under copyright. The response from Hollywood was that rather than try to help guide consumers to a limited copying solution and fight the UNlimited solutions, they ignore the unlimited applications and attack the one that is closest to being a valid product.

        It reminds me of when the Guardian Angels in NYC got into trouble for helping to fight crime. Let's forget the true criminals and go after the easy targets trying to help. That's sure to work.... not!

         

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      MBraedley (profile), Aug 13th, 2009 @ 6:11am

      Re:

      "Mike, you make a very broad and wild assumption, that your personal rights trump everything else. Your personal rights bump up against other's rights and they may stop sooner or later than you expected."

      Wow, you're either not an American, or simply don't believe in your own constitution. Although I'm not an American, I've read through the Bill or Rights and generally understand it. I may not agree with all of it, but that's another issue. However, it's clear from the language of the first ten amendments that the intention was to give Americans very broad rights and freedoms. Hate speech, which is generally illegal in most other Western countries, is protected by the first amendment, as an example. Sure, there are limits to a person's rights and freedoms, but I'm sure they're well beyond what you think they are.

       

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    Sheinen, Aug 12th, 2009 @ 5:19am

    If I can already buy a program that does what this one does, how the heck can it be justifiably blocked?

    And, furthermore, wtf is the point?

     

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    R. Miles (profile), Aug 12th, 2009 @ 5:30am

    Maybe there's bias?

    In reading judge Patel's ruling in the Napster case, I would agree this decision was not a surprise.

    Ever read her position regarding copyright outside the courtroom?

    If she had been a judge in the Pirate Bay case, the ruling wouldn't be any different.

    This woman clearly has a reading comprehension problem when it comes to actual copyright laws.

    Thank you, judge Patel, for stripping us of yet another useful tool because YOU feel it violates copyright.

    Judge. Law. Ruling. Problem.

     

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    BobinBaltimore (profile), Aug 12th, 2009 @ 5:45am

    Right Ruling on a Bad Law

    Hate to say it, but the judge is right given the present law. Until DMCA is properly challenged at a higher court level, or changed, lower court judges will continue to interpret it for what it is. So, yes, very predictable.

    I do have to call you out, Mike, on the comparison to the Kaleidescape case. With Kaleidescape, as I read it, they actually ADDED a layer of DRM to the copy made, much to the dissatisfaction of wealthy rippers everywhere (well, it did cost north of $20K). RealDVD strips DRM and leaves it wide open on any media and at any location you choose, like the ol' DVDXCopy. Very, very different cases.

    And for the angry hoards, I completely agree that consumers should be able to make backup copies of any media they purchase, and play them ubiquitously on any of their computer or A/V equipment. So you'll get no argument form me on these points.

     

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      Anonymous Coward, Aug 12th, 2009 @ 5:53am

      Re: Right Ruling on a Bad Law

      "play them ubiquitously on any of their computer or A/V equipment"

      That is never the issue - the issue is that enough people don't have self control, and immediately start giving away copies to every tom, dick, and harry walking by.

      I can see all the great uses for realdvd; Netflix delivers, you rip the DVD and 2 hours later it's back in the mail. Netflix delivers you the maximum every month, and you end up with a huge collection of movies (non of which you have any rights for).

      Your cat walks on your computer and by chance, all those copieds of DVDs (now in ISO format) accidentily get shared on the file sharing system your cat logged into.

      There is enough illegal sharing of files going on out there, why allow Real to sell a product that actively unlocks the keys to a DVD for everyone?

       

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      identicon
      Anonymous Coward, Aug 12th, 2009 @ 9:06am

      Re: Right Ruling on a Bad Law

      Mike is wrong because Kaleid was a different issue -- contract disputes and bad lawyering (not copyright infringement). In that case, the question was whether K was required by contract to have the DVD in the device during playback. The CCA agreement had your standard merger clause ("this document is the only agreement between the parties") and then the CCA tried to argue that the agreement (badly drafted by themselves) also incorporated a letter that said members shouldn't be allowed to have a device play a movie while the disc isn't inside. The original agreement said nothing about that. The lawyers never sued for any copyright infringement, so there was no ruling that K's device did or did not infringe on copyrights. The judge ruled that the letter was not part of the agreement, and the CCA couldn't unilaterally and retroactively amend the agreement. K could continue to manufacture the device without issue.

      On top of that, rules of civil procedure basically state that if you and I are in a lawsuit over an incident, we have to file all our known claims about that incident right now or waive them forever. Since the CCA didn't file copyright infringement for the incident, they're barred from it forever against K (not necessarily anyone else). There are also circumstances that very likely prevent members, subsidiaries, and parent corps of the CCA (namely the MPAA) from winning on the waived issue against K.

      You're also wrong in that RealDVD doesn't actually strip the DRM. It just makes a bitwise copy onto the hard drive. The problem in both cases is that even though you have DRM on the disc image, it can still be played anywhere, regardless of whether you own the DVD, because all DVD players (hardware and soft) can read that disc image. Rent or borrow a movie? Copy it bitwise, and you have it forever. So even though the DRM was not unlawfully decrypted, it was still circumvented.

      The bottom line is that the judge followed the law correctly. The real question is whether that law is the best policy.

       

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      Mike Masnick (profile), Aug 12th, 2009 @ 10:28am

      Re: Right Ruling on a Bad Law

      RealDVD strips DRM and leaves it wide open on any media and at any location you choose, like the ol' DVDXCopy.

      That's actually not true at all. The whole reason this is so ridiculous is that RealDVD does include DRM on the copy...

       

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        BobinBaltimore (profile), Aug 12th, 2009 @ 4:07pm

        Re: Re: Right Ruling on a Bad Law

        Yep...AC caught that above, too. My misunderstanding. You still related the JukeBox ruling and RealDVD, when the basis was entirely different. Not minor "details" as you say on your subsequent post about that case...key points.

         

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          Mike Masnick (profile), Aug 12th, 2009 @ 5:09pm

          Re: Re: Re: Right Ruling on a Bad Law

          You still related the JukeBox ruling and RealDVD, when the basis was entirely different. Not minor "details" as you say on your subsequent post about that case...key points.

          I disagree. The key points are still the same -- concerning the right to make use of a product you legally bought. The contractual matter in the Kaleidescape case is still backed up by copyright and the DMCA in the end.

           

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  •  
    identicon
    Robert, Aug 12th, 2009 @ 5:47am

    Breaking into your own home may be illegal

    Breaking into your own home may be illegal... in many places breaking an entering the act is illegal, unless your law enforcement or a *licensed* locksmith.

    You won't go to jail... normally. But you'll get some sort of fine.

    That said... kinda makes you wonder if locksmith licensing shouldn't fall under the same category. Is it really necessary in modern times when you can buy a lockpicking kit online for $10?

     

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    Hephaestus (profile), Aug 12th, 2009 @ 5:54am

    Hate to be the ....

    the spelling police considering how bad my spelling is

    Mike could you change the line ....

    "The have some rights to exclude, but those rights are limited." to

    "THEY have some rights to exclude, but those rights are limited."

     

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    J. Dredd, Aug 12th, 2009 @ 6:01am

    I AM THE LAW!

    That's what happens when judges get swollen heads and begin to think that THEY are the law!

    Perhaps Judge Patel would be nick-named, "Judge Dredd" with her famous quote being "I AM THE LAW!"

     

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      BobinBaltimore (profile), Aug 12th, 2009 @ 7:18am

      Re: I AM THE LAW!

      Incorrect. In this case, the judge is slavishly following the law as written. It's annoying but predictable and reasonable, judicially speaking. When judges decide to legislate from the bench, the results are wildly unpredictable and typically buck the legislation in question. Not the case here.

       

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      Anonymous Coward, Aug 12th, 2009 @ 8:49am

      Re: I AM THE LAW!

      patel is the same lady who said all software patents are invalid just a few months ago.

       

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    Michial Thompson, Aug 12th, 2009 @ 6:02am

    This is not for BACKUP purposes

    You are losing grasp of one fact. RealDVD's purpose is NOT to backup DVD's. It's purpose is to COPY the DVD so that the COPY is what is used. There is a big difference.

    You are only correct that you have a legal right to make a backup of your DVD, but your legal right to use that backup exists ONLY if the original is destroyed.

     

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      Dark Helmet (profile), Aug 12th, 2009 @ 6:28am

      Re: This is not for BACKUP purposes

      "your legal right to use that backup exists ONLY if the original is destroyed"

      Honest question: where in the wording of the law does it say that? I haven't read it all, so I'm seriously asking where that is said. Quote?

       

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      Kevin J, Aug 12th, 2009 @ 6:54am

      Re: This is not for BACKUP purposes

      "It's purpose is to COPY the DVD so that the COPY is what is used."

      I'm sorry, what? I have to ask this with all seriousness, but what is a backup other than a COPY? If I backup a database, do I not create a COPY of the database? And isn't the purpose of a backup so that "the [backup] COPY is what is used" when the original is destroyed or otherwise unusable? What is the use of a backup if you can't use it in place of the original when you need to?

       

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      BobinBaltimore (profile), Aug 12th, 2009 @ 7:19am

      Re: This is not for BACKUP purposes

      Actually a true COPY would include DRM, would it not?

       

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      technomage (profile), Aug 12th, 2009 @ 8:26am

      Re: This is not for BACKUP purposes

      Sorry I disagree with you on this, as does micro$oft. Micro$oft repeatedly told people (during the age of floppies) to make backup copies of them, then USE the backups to install. That way you always have the original to make another duplicate. multiple copies off an original(stretching here calling anything truly original in this context) is a far better cry than a copy of a copy of a copy. Case in point: cassettes.

       

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    B8A, Aug 12th, 2009 @ 6:29am

    Further consequences of civil disobedience?

    I claim that when the laws of a country are in sufficient variance with the behaviours of a significant proportion of the population then regard for the law overall is at risk. In other words, when many people disregard the law in one area, disregard in other areas is facilitated. The authority of the state is ultimately consensual. After copyright (widely disregarded in the early history of the united states as official policy) what next?

    In the case of drm (ineffectual) the true aim of manufacturers is a delaying manoeuvre, buying them time on a heavily invested business model until public non compliance is so rampant they can blame the collapse on 'we the people' rather than at their own unresourceful feet.

     

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    Adam (profile), Aug 12th, 2009 @ 7:10am

    Breaking into your own house....

    "...it's like saying that breaking into your own house is illegal". If you say it is and a policeman says it's not, the President might buy you a beer.

     

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    Spoiler, Aug 12th, 2009 @ 7:12am

    Surprise!

    HA! Its no surprise the judge backed the goons. Now, I urge everyone to leave the DVDs and CDs on the shelves this Christmas. Tell everyone. Lets make it clear how we feel about the goon squad tactics being used against consumers.

     

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    Phoenix, Aug 12th, 2009 @ 7:41am

    International Implications?

    Thankfully, I have an application that is much better than RealDVD to support my fair use needs.

    I've paid for digital copies of video and audio content that is protected by copyright and I will respect the copyright owners rights by not illegally distributing the content. However, rightly or wrongly, I consider it my right to chose which device in my house I will use to play the content and that implies additional form factors beyond DVD.

     

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      identicon
      Steve, Aug 12th, 2009 @ 8:25am

      Re: International Implications?

      I agree with Phoenix 100%, and I do the exact same thing at my house.

      I rip all my DVDs so I that I can watch them how I want. However, I do not distribute copies to anyone. Let them buy their own. While I hate the fact that technically this may be against the law, consider it a case of civil disobedience against an unjust law.

       

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    Anonymous Coward, Aug 12th, 2009 @ 7:54am

    Now, it's important to understand a few basic facts: under copyright law, you are allowed to make a personal backup of something like a CD or software.

    Please correct me if I am mistaken, but under the specific provisions of Title 17 backup copies "aka, archival copies) pertain only to software. See: 17 USC 117

    There is no statutory right to make a backup of anything else. Hence, the authority to make such a backup would need to be based upon some alternate approach such as contract law.

     

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    jaf, Aug 12th, 2009 @ 7:59am

    Gun rights?

    Does this have second amendment issues? In that something that is legal (be it a pistol or DVD copy software) has nefarious uses (shooting someone or making a copy of a movie to sell) and less nasty ones (target shooting or making a personal back up). In the case of the DVD software, since it can be used for bad, it is illegal, the pistol is not. Seems like the only difference I can see is money......

     

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    Anonymous Coward, Aug 12th, 2009 @ 8:47am

    This quote by the judge sums it up

    "The court appreciates Real's argument that a consumer has a right to make a backup copy of a DVD for their own personal use," Patel wrote, but noted that "a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies."

    You have rights, it's just illegal to exercise those rights.

     

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    PRMan, Aug 12th, 2009 @ 1:01pm

    A quote from Judge Patel..."Blame Congress!"

    So while it may well be fair use for an individual consumer to store a backup copy of a personally-owned DVD on that individual's computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.... In enacting the DMCA, Congress chose to strike a balance to combat piracy and maintain economic incentives to create. The balance embodied in a federal law is not something this court can disturb, absent a Constitutional violation not at issue here.... ("The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress... .").

     

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    identicon
    Anonymous Coward, Aug 12th, 2009 @ 2:15pm

    Two years ago, a court found that Kaleidescape, makers of a super high-end DVD jukebox, was perfectly legal.

    ...and today that decision was reversed by the appellate court.

     

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    identicon
    Farkus McDee, Aug 12th, 2009 @ 5:32pm

    Mindless Anonymous Coward repeats and repeats and repeats...

    "...it's illegal,"

    No, brainless, it isn't. Next time have someone read the article to you, before you make a comment.

     

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