RealNetworks will appeal the preliminary injunction preventing it from marketing its RealDVD DVD-copying software for PCs and a planned set-top DVD jukebox that stores movie DVDs on an internal hard drive.
In August, the U.S. District Court for Northern California issued the preliminary injunction, contending that Real would likely lose in a lawsuit lodged late last year by the movie industry, which alleges the Real products violate the Digital Millenium Copyright Act (DMCA) and the terms of Real's Content Scramble System (CSS) license. The judge also concluded that Hollywood would suffer “irreparable harm” if the products were on the market because Real's technologies do not limit multiple consumers from copying the same disc, nor do they prevent consumers from renting a disc and copying it.
Real is taking its appeal to the Ninth Circuit Court of Appeals, where opening briefs will be filed in early November. Real's other option would have been to go to trial on the merits of the case while the preliminary injunction remained in force.
RealDVD software was on the market for several days in October 2008 before Patel issued a temporary retraining order prohibiting sales until she decided whether a preliminary injunction was justified. The DVD jukebox was in development but was not yet on the market.
In the August decision issuing the preliminary injunction, the court was unequivocal in stating that, among other things:
• products that copy DVD content to a hard drive, including their encryption, violate the DMCA and CSS license stipulations because they remove other CSS copy-control technologies;
• the CSS license agreement “does not give license to copy DVD content to a hard drive permanently;” and
• CSS protections are designed expressly to prevent “unauthorized interception and the creation of a copy of the keys and DVD video content on a storage device for future playback without the DVD.”