The studios and the DVD Copy Control Assn. (DVD-CCA) are on a legal roll. On successive days last week they won a preliminary injunction against RealDVD and a reversal on appeal in the Kaleidescape case (The Media Wonk has been on another assignment so I’m only just getting aroundto blogging this now). The two courts found, inter alia:
- The CSS license and technical specifications “unambiguously rule out” (RealDVD) the making of permanent digital copies of DVDs and prohibit the playback of the DVD’s content without the original disc in the tray.
- The technical specifications in the CSS license are indeed part of the CSS license agreement and it was the “unambiguous intent” of the parties that those specifications barred the creation of permanent digital copies (Kaleidescape).
- The anti-circuvention provisions of the DMCA clearly and plainly tipped the balance of copyright law in favor of copyright owners and trumped any fair use analysis (RealDVD).
The studios really couldn’t have asked for more.
So, now what? Now that the studios have won most of the key legal points and preserved the integrity of the CSS license (at least for now), what will they do with them?
Alas, probably nothing very useful.
As long-time readers of The Media Wonk know, the DVD-CCA has been attempting to devise a comprehensive system for allowing “managed copying” of DVDs for the better part of four years–a process that has thus far produced little apart from the Kaleidescape and RealDVD litigation. Based on the most recent discussions, in fact, Media Wonk’s sources suggest, negotiators seem farther than ever from a comprehensive solution.
Part of the hang-up (though by no means the only part) has been the studios’ insistence on closing what became known within DVD-CCA as the “Kaleidescape loophole.” According to the trial court, Kaleidescape could be both licensed to decrypt CSS-encoded content (necessary for playback) but not bound by other provisions of the CSS license that purported to prohibit the creation of permanent digital copies.
The studios insisted on amending the license to clarify that CSS licensees ABSOLUTELY, POSTIVELY CANNOT create permanent digital copies or enable playback of a DVD’s contents from any source other than the original disc.
Bolstered by the trial court’s ruling in its favor, however, Kaleidescape threatened to bring anti-trust litigation against DVD-CCA and its board members should it retroactively amend the license in a way that would foreclose on Kaleidescape’s ongoing business. While the studios were willing to risk it, the CE and IT companies within DVD-CCA, already ambivalent about what was in managed-copy for them, weren’t about to take an anti-trust bullet for the studios over a handful of $20,000 media servers.
Unable to resolve the issue, DVD-CCA negotiators decided to table the question of amending the license while discussions continued around what the design and scope of a managed-copy system would look like. The first thing the studios decided was that it wouldn’t look like a comprehensive system. Instead, the studios insisted they by able to negotiate individual CSS managed-copy solutions with individual device makers on a don’t-call-us, we’ll-call-you basis. But even those discussions had lately bogged down over whether a studio that made a deal with, say, Apple, to allow the transfer of DVDs to an iPod should have to offer the same deal to other device makers, among other issues.
All of which is to say: just because the studios won on most of the key legal points in the Kaleidescape and RealDVD rulings, there’s no reason to expect they’ll be any more amenable to the idea of adding value to the ownership of DVDs by enabling new uses of them. Sadly, the litigation against Kaleidescape and Real, from the studios’ point of view, had nothing to do with bringing home media servers or back-up copying within the scope of licensed uses of a DVD. It was about precluding the possibility that such uses could ever be sanctioned, despite the manifest consumer demand for them.