chosen to prevent the copying enabled by the Streambox VCR by putting their content on
RealServers and leaving the Copy Switch off.^1037
In addition, the court, citing Nimmer’s copyright treatise, ruled that, by passage of the
DMCA, Congress had decided that “those who manufacture equipment and products generally
can no longer gauge their conduct as permitted or forbidden by reference to the Sony doctrine.
For a given piece of machinery might qualify as a stable item of commerce, with a substantial
noninfringing use, and hence be immune from attack under Sony’s construction of the Copyright
Act – but nonetheless still be subject to suppression under Section 1201.”^1038 The court also
rejected Streambox’s asserted defense under Section 1201(c)(3) of the DMCA, which it cited for
the proposition that the Streambox VCR was not required to respond to the Copy Switch. The
court noted that this argument failed to address Streambox VCR’s circumvention of the Secret
Handshake, which was enough by itself to create liability under Section 1201(a)(2).^1039
Turning to the Streambox Ripper product, the court ruled that the plaintiff had not
established a reasonable likelihood of success on its DMCA claim. RealNetworks maintained
that the primary purpose and only commercially significant use for the Ripper was to enable
consumers to prepare unauthorized derivative works of copyrighted audio or video content. The
court rejected this argument, noting that the Ripper has legitimate and commercially significant
uses to enable content owners, including copyright holders and those acquiring content with the
content owner’s permission, to convert their content from the RealMedia format to other formats.
Moreover, there was little evidence that content owners use the RealMedia format as a
“technological measure” to prevent end users from making derivative works. In any case, the
court found that RealNetworks had not introduced evidence that a substantial number of content
owners would object to having end users convert RealMedia files that they legitimately obtained
into other formats, or that Ripper would cause injury to RealNetworks.^1040
Finally, the court ruled that the plaintiff was entitled to a preliminary injunction with
respect to Streambox Ferret. RealNetworks claimed that Streambox committed contributory or
vicarious copyright infringement by distributing the Ferret to the public, because consumers who
used the Ferret as a plug-in were making an unauthorized derivative work of the RealPlayer by
changing the RealPlayer user interface to add a clickable button that permitted the user to access
the Streambox search engine, rather than the Snap search engine. Although the court stated that
it was not persuaded that RealNetworks had demonstrated that it was likely to succeed on its
contributory/vicarious infringement claims on this basis, the court concluded that RealNetworks
had raised serious questions going to the merits of its claims, and the balance of hardships clearly
favored RealNetworks, because the addition of the alternative search engine afforded by the
Ferret jeopardized RealNetworks’ exclusive relationship with Snap.^1041
(^1037) RealNetworks, 2000 U.S. Dist. LEXIS at 21-22.
(^1038) Id. at 23 (quoting 1 M. Nimmer & D. Nimmer, Nimmer on Copyright (1999 Supp.) § 12A.18[B]).
(^1039) RealNetworks, 2000 U.S. Dist. LEXIS at 23.
(^1040) Id. at 27-28.
(^1041) Id. at *30-33.