Reimerdes, Chamberlain, and RealDVD: The DMCA and a Doctrine of Nonsubstantial Infringing Uses

INTRODUCTION On August 11, 2009, federal Judge Marilyn Hall Patel of the Northern District of California issued a memorandum and order preliminarily enjoining RealNetworks, Inc. ("Real") from manufacturing, trafficking, and distributing RealDVD, (1) a product that allows users to "rip" digital versatile discs (DVDs) to the hard drives of computers. (2) Although RealDVD provides users with a variety of functions--for instance, supplying information about a DVD's content, making available links to relevant websites, and providing protection from scratching--its principal and controversial function is to save the content of a DVD to the hard drive of a computer. This, according to Real, allows consumers to backup their personal property. (3) The product provides a limit of five software licenses, so users can play back copies of their DVDs on up to five computers on which RealDVD has been downloaded and registered to the individual's user account and license key. (4) Although Real markets its product solely for use with DVDs that a consumer owns, warning its potential users that the product is legal only if you are the owner of the to-be copied DVD, the product itself does not limit the number of times a physical DVD can be copied and allows a user to copy DVDs not owned by its user. (5) RealDVD works by decrypting the technological security measures that are placed on a DVD by those who own the copyright to its content. (6) The principal security measure, Content Scramble System (CSS) technology, "is an encryption-based system that requires the use of appropriately configured hardware such as a DVD player or a computer DVD drive to decrypt, unscramble and play back, but not copy, motion pictures on DVDs." (7) This encryption-based system employs an algorithm configured by a set of security keys that transforms a DVD's content into "gibberish." (8) Only those devices that contain "player keys" and the CSS encryption algorithm can access the DVD's contents. (9) Hollywood smartly released its copyrighted content in digital form only after it had developed these security measures, which allowed it to successfully combat piracy, (10) Hollywood now controls the use of a DVD's content, and so it licenses decryption information for an annual fee to those DVD player manufacturers that have an interest in having their DVD players work. (11) But Hollywood does not give away the keys to its castle: "The CSS technology creates a system whereby a movie ... may only be played back in decrypted and unscrambled form from the physical DVD and not any other source, such as a computer hard drive. This same system ensures that 'playable,' i.e., decrypted and descrambled, copies ... cannot be made." (12) Furthermore, the terms of the license include a confidentiality agreement that keeps "player keys" and other data secret. (13) With this technology in hand, the Studios began releasing movies on DVD in 1997. (14) The format quickly became popular, creating a significant source of revenue. (15) In deciding whether to enjoin Real from taking its product to the market, Judge Patel faced two overarching issues: (1) whether Real's conduct violated the Digital Millennium Copyright Act (DMCA) (16) and (2) whether Real had breached its license agreement with the DVD Copy Control Association. (17) The latter issue concerned the CSS License Agreement signed by the parties, an agreement which made Real a licensee of CSS technology, giving to Real the information it needed to develop RealDVD. The former issue concerned a law--the DMCA--whose interpretation is currently in controversy and is the subject of this Note. (18) From Judge Patel's order and memorandum enjoining Real, an issue emerges, which can only be understood after an explication of the DMCA. Thus, Part I lays out the relevant provisions of the DMCA, followed by Part II, which presents the issue of this Note--an issue faced, considered, and ruled on by Judge Patel. …