Legally blind: RealNetworks and Microsoft shafted by the courts

Yesterday's rulings against RealDVD and Microsoft Word reinforce a painful truth: The law can no longer keep up with technology

It's Stupid Legal Tricks Day here in Cringeville, as we bring news of two court rulings certain to bring joy to the hearts of a handful of corporate attorneys and misery to everyone else.

First: Federal District Court Judge Marilyn Hall Patel has issued a preliminary injunction against RealNetworks, barring the sale of its RealDVD backup software. (Patel had issued a temporary injunction shortly after RealNetworks announced the product last fall, at the request of the movie industry.) This ruling isn't final, but her 58-page ruling [PDF] does not contain much good news for Real.

[ Also on InfoWorld, Bill Snyder warns: Watch out, developers: Here come the lawyers | Stay up to date on Robert X. Cringely's musings and observations with InfoWorld's Notes from the Underground newsletter. ]

Remember: We're not talking about a toy for BitTorrent fanboys. RealDVD allows real owners of DVDs to make backup copies of movies they have legally purchased. Using RealDVD, you can store copies of a film on up to five machines -- and that's about it. In fact, the software does a whole lot less than dozens of other more dubious DVD copying programs you can find on the Net.

As Harry McCracken at The Technologizer notes:

RealDVD ... adds an extra layer of copy protection to prevent you from doing anything except copying a movie to one hard drive for viewing on one computer at a time. (You can’t even put the movies on a shared drive to watch them from multiple computers on one network.) The court is apparently inclined to look askance at even a fundamentally hobbled (albeit easy-to-use) DVD copier.

So what the movie studios are saying with this suit is that when you buy a DVD, you don't own that movie, you own the brittle plastic platter it comes on. And when that plastic platter gets scratched or cracked, you have the right to spend another $20 for a new one. Isn't that special? (For more on the nitty-gritty details of copyrights and wrongs, see Christina Tynan-Wood's recent Gripe Line post, "Can I make copies of my DVDs?.")

If the movie moguls' true motive was to secretly encourage movie piracy, they couldn't have come up with a better plan. Way to go, Hollywood.

But don't blame Judge Patel. The real villain in this plot is the good old Digital Millennium Copyright Act, aka the Gift to Copyright Owners That Keeps on Giving. Per Good Morning Silicon Valley's John Murrell:

You might think that making a personal backup copy would be considered a fair use exception to copyright law, but according to Judge Patel, the DMCA prevents her from even getting to that issue. "The court appreciates Real's argument that a consumer has a right to make a backup copy of a DVD for their own personal use," she wrote. "While it may well be fair use for an individual consumer to store a backup copy of a personally-owned DVD on that individual's computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies."

As Murrell notes (and I've said a few times myself lately), the only solution lies in getting Congress to create new copyright laws that display "a little less concern for the entertainment industry’s business model and a little more for the reasonable rights of the honest consumer." Don't hold your breath waiting for that to happen unless you've got an oxygen tank handy.

Case No. 2: A Texas judge has banned sales of Microsoft Word 2003, 2007, and 2010 in these here United States. Why? Because all three let you open and/or save documents containing custom XML code. Earlier this year, a court ruled that Toronto-based i4i owns the patent on custom XML, and Microsoft owes nearly $300 million in damages as a result.

Normally, I'm happy to see Microsoft taken out to the woodshed for its crimes against humanity (no matter how loudly the MSFT fanboys may wail). I firmly believe it has "borrowed" a lot of technology from companies over the years, and its track record in patent cases tends to back this up. But a total ban on sales of the world's leading word processor is just stupid.

Few experts expect this ruling to stick or that copies of Word will mysteriously vanish from store shelves and Microsoft's Web site. As MacWorld's Dan Moren notes, i4i sells products that work with XML inside Word, so halting sales is like shooting themselves in both feet. PC World's Tony Bradley offers five good reasons why Microsoft will prevail, among them being that it could simply buy i4i for slightly more than the cost of a bagel and a cup of coffee for every Microsoft employee.

I am not an attorney (for which the ABA should be cutting me a check or something), but this sure sounds like judicial overreach to me. Along with the RealDVD ruling, it's yet another example of how the law is falling further and further behind technology. It's time for Legal System 2.0.

What's your take? Will we ever have laws that are fair to both consumers and copyright/patent holders? Post your legal arguments below or subpoena me at

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