The announcement this week of RealDVD from RealNetworks needs a bit of analysis before we can work out what its likely effect will be on things like DVD consumption.
What the software does is make a copy of the files on a DVD onto your hard drive on your PC, and then plays them back from the hard drive as if they were a DVD, decrypting them on the fly using the CSS algorithms and keys in the same way that a DVD would work.
The questions that arise include, is the selling of the software legal, and separately is the act of making a copy on your hard disk legal even if the software itself hasn’t broken any rules? Another question you may wish to ask is what exactly is the intention of RealNetworks here, is it to sell software and not care about whether or not piracy takes place and all of its literature on RealVD is disingenuous, or are its motives pure enough?
Another question that might be worth asking is if this approach works is, why wouldn’t the film industry ‘want’ large repositories of encrypted video files to be facilitated, so that people can conveniently store large amounts of video ‘ it might make them more eager to buy films in future?
What you have to ask yourself is just how will anyone go about pirating this video? There are two ways. First don’t bother, but actually file share the encrypted files across the internet. If the entire DVD system is copied and it must be done so that it includes the decryption keys which are stored on the DVD (otherwise how does it decrypt the DVD), then the person that takes a copy over the internet will have to use an illegal descrambler for the DVD file, so it they who are breaking the law. The earliest tool for this was the DeCSS descrambler that DVD Jon designed 7 years ago or more, which can still be found freely on the internet at sites in countries which have not implemented legislation in keeping with the Digital Millenium Copyright Act.
But there are issues here. Sending it to a stranger, even encrypted must surely be encouraging piracy. Also how does the Real software know where the decryption key is stored on the DVD? By going to the trouble of finding it and copying it, isn’t that contributing to later piracy. The DMCA was famous for not making it merely illegal to copy files, but it made it illegal to break content protection whether or not you committed copyright theft. The Supreme Court has already said that P2P networks can be assumed to be encouraging the breach of copyright where they have no other visible form of revenue and that encouragement is a breach of the law, so why couldn’t the same approach be applied to encouraging people to breach content security, since that is in itself a crime. By extension doesn’t it come under existing legislation as aiding the process of encouraging copyright theft. Wouldn’t identifying the decryption key and making a copy of that be such an encouragement?
We think the simple answer is that it would take a court of law to find it so, and several appeals, but that if this software leads to piracy, then this is a route that Hollywood might go down.
But technically you might say that VHS does the same thing. It defeats content protection by taking an analog copy of the film directly from the screen input. And yet it is not illegal. Well no that is enshrined in US law, but making a VHS circumvents, not tampers with content protection, and the process has another use, to own a personal copy. So does RealDVD. So the illegal act might be when someone subsequently breaks the encryption or ships the entire library over to a friend who plans to rip them through the analog hole.
That suggests that RealNetworks is not guilty here of piracy, but its software may make it easier to manage, despite having a perfectly legal ‘other’ application.
Our take on this is that all the studios can do is sit and wait and keep an eye on this, and if it happens, they would then have to prove that piracy was coming through this route. But given that it is so easy to break CSS and put DVD content on P2P network, RealNetworks making it easier through a different route will have no material effect on piracy. However if a HD Blu-ray version of the RealDVD software comes out, then Hollywood would not be expected to behave rationally.
The problem is that if Hollywood does nothing about this then everyone else will copy it within months, because this is not hard to do. So it needs to begin a legal objection loudly to put other players off. Even if it fails after 5 years in court, it will have found itself time for countermeasures such as those contained in Blu-ray and AACS which includes an ability to kill certain player’s decryption rights in subsequent DVD releases and stop the player from working. So the sniff of a legal action might be enough to halt this in its tracks.