SAN FRANCISCO—Hollywood’s big movie studios have succeeded in blocking software that would allow you to copy a movie onto your hard drive, but a court case beginning here today could overturn the restraining order, cracking the armor of an industry increasingly dependent on government protection.
At issue is a $50 software program called RealDVD, which enables users to copy a movie from a DVD onto their hard drives, creating a backup copy in case you break or lose the disc, or allowing you to tuck your DVDs away in the attic as many folks already do with the CDs they’ve ripped onto their hard drives.
The copy RealDVD places on the hard drive is encrypted, preventing it from being shared, burned onto another CD, or saved onto your iPhone or any other storage device. “The copy of the movie is glued pretty severely to your hard drive,” RealNetworks attorney Bill Way told this column, pointing out that plenty of better piracy tools are available free on the web.
But studios have a legitimate concern about the software: a practice called “Rent-Rip-Return.” Using this software, you could rip a rented movie onto your hard drive, return the DVD, but keep the movie forever. While federal copyright law allows you to make and keep an extra copy of a work you own (this is included under the notion of “fair use”), it’s illegal to keep a copy of a movie you don’t own. While RealDVD instructs you not to do it, the software can’t distinguish between a rented or a purchased DVD. (RealNetworks says they want to work with studios to fix this problem.)
A scofflaw with a NetFlix account could use RealDVD to build a huge illegal film library limited only by his hard drive space.
But that doesn’t make the software illegal. VCRs can record TV movies and shows, but the U.S. Supreme Court ruled in the 1984 case Sony v. Universal Studios that VCRs were, in fact legal, because there was a substantial legal use for the device, in addition to its potential illegal use.
The stickier issue—and the basis for the restraining order that keeps this software off the shelves—involves the “circumvention” provision in the Digital Millennium Copyright Act, a 1998 law that ramps up federal protection of the intellectual property of film and music studios. Under the DMCA, it’s a federal offense to circumvent a technological measure that effectively controls access” to a copyrighted work. RealNetworks’ lawyers say they’re not circumventing anything, and the studios say they are.
The software maker argues that the studios’ case is just “anti-competitive.” Studios are rolling out their competing product, called Digital Copy, that enables you to do what RealDVD does: place a copy of a movie on your hard drive. “These guys don’t care about Rent-Rip-Return,” Way told me the day before the case. “This is really about the fact that they want to sell you their product.”
Lawyers and judges are thrashing out the specifics here in San Francisco starting today, but there’s a broader question here, relevant as Congress considers intellectual property law this year: Why should the government and the taxpayers be on the hook for protecting the current business model of Hollywood? Video piracy and downloading unauthorized free movies shouldn’t be permitted, of course, but maybe it’s Hollywood—and not Washington—that needs to work harder.
If the movie studios can’t survive without blocking you from backing up your copy of “Elmo’s World” onto your laptop, then maybe Hollywood is in need of innovation.
But Hollywood has connections in Washington. Last election, according to the Center for Responsive Politics, the motion picture industry contributed $14 million to candidates for federal office, with 90% of that going to Democrats. Barack Obama’s got $3.4 million in Hollywood money last cycle, more than twice what all Republican candidates—House, Senate, White House—got combined.
RealNetworks has hired D.C. consultants to push the company’s public relations case, but the studios have the upper hand on Capitol Hill.
In 2008, the industry spent $4.1 million lobbying Washington, led by the Motion Picture Association of America’s $1.9 million. MPAA chairman Dan Glickman was Bill Clinton’s Agriculture Secretary after serving 18 years in Congress.
With these Washington ties, it’s unsurprising the laws are stacked in the studios’ favor. Starting today in San Francisco, we’ll see just how much those laws protect Hollywood from the need to innovate.
Timothy P. Carney is The Washington Examiner’s lobbying editor. His K Street column appears on Wednesdays.
