U.S. District Judge Marilyn Hall Patel's ruling came in a decision in which she declared RealNetworks' DVD copying software was illegal. She barred it from being distributed.
Patel said the RealDVD software violates the Digital Millennium Copyright Act of 1998 that prohibits the circumvention of encryption technology. DVDs are encrypted with what is known as the Content Scramble System, and DVD players must secure a license to play discs. RealDVD, she ruled, circumvents technology designed to prevent copying.
But the decision, although mixed, left open the door that copying DVD's for personal use "may well be" lawful under the fair use doctrine of the Copyright Act, although trafficking in such goods was illegal.
"Because RealDVD makes a permanent copy of copyrighted DVD content, there is no exemption from DMCA liability, statutory or otherwise, that applies here. Whatever application the fair use doctrine may have for individual consumers making backup copies of their own DVDs, it does not portend to save Real from liability under the DMCA in this action," Patel wrote (.pdf) in a lawsuit brought by Hollywood.
However, she stopped short of sanctioning personal use copies, and gave a conflicting message on whether it was legal. "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," Patel said. She added, "fair use can never be an affirmative defense to the act of gaining unauthorized access" a simple way of saying it was illegal to hack into the encryption to make a copy.
"These seem to be contradicting points," said Fred von Lohmann, a copyright attorney for the Electronic Frontier Foundation, a civil liberties group based in San Francisco.