the function at issue in the lawsuit – saving an image of the copy-protected content on the
device’s hard drive for later playback without the physical DVD being present.^911
The court ruled that the CSS technology was both an access control and a copy control
(the authentication process functioned as an access control and the encryption functioned as a
copy control),^912 and that distribution of RealDVD therefore violated the anti-trafficking
provisions of both Sections 1201(a)(2) and 1201(b). RealDVD circumvented the access controls
of CSS in violation of Section 1201(a)(2) by allowing access of CSS content on the hard drive
without going through most of the CSS protection steps, such as DVD drive-locking, CSS
authentication, and CSS bus encryption. Once RealDVD had copied a DVD, it did not
authenticate the DVD drive or receive encrypted keys for playback from the hard drive.
Accordingly, the process of authentication with the DVD drive, and subsequent content
decryption, were thereby circumvented by RealDVD.^913 RealDVD circumvented the copy
controls of CSS in violation of Section 1201(b) by using the CSS authentication codes and
algorithms to make an unauthorized copy of the DVD content.^914
The court rejected a number of defenses asserted by Realnetworks. First, Realnetworks
argued that CSS was not an “effective” technological measure because it had been widely
cracked. The court found this fact of no moment, because the DMCA is predicated on the
authority of the copyright owner, not whether or not the technological measure is a strong means
of protection. The court held that it is sufficient under the statutory language if an access control
prevents the easy creation at the consumer level of widely available and usable copies of
copyrighted works.^915
The court rejected Realnetworks’ argument that the copyright holder plaintiffs (the movie
studios) could not bring a DMCA claim against a co-licensee to CSS technology. Realnetworks
cited cases holding that copyright licenses are governed by contract law and copyright owners
who enter into such licenses waive their rights to sue the licensee for copyright infringement and
are limited to breach of contract claims. The court distinguished those cases, noting that the
studios were not bringing copyright infringement claims, nor were they the direct licensors of
CSS technology. Because Realnetworks had acted outside the scope of its license with the
DVDCCA, the studios were permitted to bring circumvention claims under the DMCA.^916
The court also rejected Realnetworks defenses that distribution of RealDVD was
protected by the Sony doctrine because it was capable of substantial noninfringing uses and by
(^911) Id. at 924. The RealDVD und user license agreement provided, “You may use the saving functionality of the
Software only with DVDs that you own. You may not use the Software to save DVDs that you do not own,
such as rental or borrowed DVDs.” Id. at 926.
(^912) Id. at 935.
(^913) Id. at 933.
(^914) Id. at 935.
(^915) Id. at 932.
(^916) Id. at 933.