In September 2008, the motion picture industry sued RealNetworks over its RealDVD software, which was designed to allow consumers to copy their DVDs to their computers for later playback. Real had obtained a license from DVD-CCA for its software, apparently relying on earlier court rulings in the DVD-CCA v. Kaleidescape case, where a California state court ruled that Kaleidescape's licensed digital DVD jukebox was within the scope of the DVD-CCA license.

On September 30, 2008, the day Real was to formally launch its RealDVD product, the motion picture studios filed a lawsuit in Los Angeles and asked for a temporary restraining order (TRO) to block the launch. The same day, RealNetworks filed a lawsuit in San Francisco asking the court to declare that distribution of RealDVD is lawful. The court in Los Angeles subsequently transfered the case to San Francisco, where it is pending before Judge Patel, who ordered a temporary halt to distribution of RealDVD until a further hearing in late November 2008.

At issue in this case was whether three software programmers who created the BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA).

BnetD was an open source program that let gamers play popular Blizzard titles like Warcraft with other gamers on servers that don't belong to Blizzard's Battle.net service. Blizzard argued that the programmers who wrote BnetD violated the DMCA's anti-circumvention provisions and that the programmers also violated several parts of Blizzard's EULA, including a section on reverse engineering.

The Electronic Frontier Foundation (EFF) and the firm of Day Casebeer Madrid & Batchelder served as counsel for defendants, arguing that programmers should be allowed to create free software designed to work with commercial products because it benefited consumers and helped promote innovation. The 8th Circuit Court of Appeals disagreed, holding that reverse engineering and emulating the Blizzard software were illegal.

Outcome: The reverse engineering and emulating of the Blizzard software violated the anticircumvention provisions of the DMCA. This ruling has been widely criticized as making it impossible to create new programs that interoperate with older ones and squeezing consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own.

Marvel is suing NCSoft and Cryptic, makers of the massively popular multiplayer online game "City of Heroes," for copyright and trademark infringement. Marvel claims that because players in the game, who create superhero characters to send on in-game missions, can make characters that look like Wolverine or the Incredible Hulk, the game's creators are contributing to players' infringement. Next case on the docket? Stop little Jimmy and Janie from wearing unlicensed capes while they play Superman.

The RIAA sought to force the Missouri ISP, Charter Communications, to turn over the identities of its customers who the RIAA believed had engaged in peer to peer filesharing.

Outcome: 8th Circuit Court of Appeals held that RIAA could not use pre-litigation DMCA subpoenas and instead must file regular lawsuits, explicitly applying the rule of RIAA v. Verizon.

• Amicus Brief of U.S. (PDF 242k - February 24, 2004)
• Brief of Appellee RIAA (PDF 166k - February 24, 2004)
• ISPs' Brief in Support of Charter (PDF 1.3M - January 26, 2004)
• Consumer and Privacy Groups' Brief in Support of Charter (PDF - January 26, 2004)
• Appellant's Brief (PDF 582k - January 15, 2004)
• RIAA Eighth Circuit Opening Brief (PDF 952k - January 6, 2004)
• Charter Motion to Quash Subpoena (PDF 204k)
• Charter Memorandum in Support of Motion to Quash (PDF 960k)
• Charter Motion for Protective Order (PDF 200k)
• Charter Memorandum in Support of Motion for Protective Order (PDF 820k)
• RIAA Memorandum in Opposition to Charter's Motion for Protective Order (PDF 606k)
• RIAA Opposition to Motion to Quash
• RIAA Exhibits
• Charter Reply in Further Support of Motion to Quash
• Motion to quash denied without written opinion
  • Motion for Summary Reversal (PDF 39k - December 23, 2003)
  • RIAA's Opposition (PDF 95k - January 6, 2004)
• Petition for Rehearing February 18, 2005
• 8th Circuit DecisionJanuary 4, 2005

The DMCA has increasingly been used to stymie competition, rather than fight "piracy." This case is another example of that trend.

Here are the facts: a vendor of high-density storage solutions wants to dominate the aftermarket for maintenance and service of its products. Nothing new here - vendors would love to lock you into using them for service. Thankfully, independent service providers have traditionally been able to offer some competition, to the benefit of consumers.

Years ago, computer vendors started trying to use copyright law to block competition - if independent service providers need to turn on the computers, they must be making unauthorized copies! Gotcha! Ultimately, Congress had to amend the Copyright Act to make it clear that independent service providers could turn on your computer to service it without fear of copyright retribution.

Now the bad guys at it again, this time with the DMCA. By putting a rudimetary "protection measure" on their maintenance code, StorageTek hoped to lure independent service vendor Custom Hardware into a DMCA trap - aha, even if the Copyright Act lets you turn on the computer, now we've got you for "circumvention"!

Fortunately, the Federal Circuit Court of Appeals wasn't buying it. It ruled that Custom Hardware was not violating the DMCA because merely activating the maintenance code had no nexus with any potential copyright infringement. After all, it's not as though Custom Hardware was going to make a hundred copies and carry them off to sell at the local swap meet! They were just using code that StorageTek's customers already had on their systems.

StorageTek petitioned the full Federal Circuit, asking that the earlier ruling be overturned and that the Federal Circuit's decision in Chamberlain v. Skylink (the DMCA v. universal garage door opener case) be thrown out. Joining them, not surprisingly, was the entire copyright cabal (RIAA, MPAA, AAP, NMPA, SIIA, ESA).

Well, we think that the Federal Circuit was right to rule that the DMCA ought not block competition in garage door openers. Or printer cartridges. And we think they were right in this case not to let the DMCA block competition for computer maintenance, either.

StorageTek's petition for rehearing or rehearing en banc, seeking to have the Court of Appeals ruling overturned by the full court. Amicus brief of the Copyright Industries in support of the petition for rehearing. Amicus brief of the New England Legal Foundation in support of the petition for rehearing.

Case history:
The Recording Industry Association of America (RIAA), using a controversial subpoena provision introduced by the 1998 Digital Millennium Copyright Act (DMCA), demanded that Verizon Internet Services reveal the identity of a Verizon subscriber who allegedly used KaZaA peer-to-peer software to share music online. Verizon refused to divulge the subscriber's identity, claiming that the provision didn't cover alleged copyright-infringing material that resides on individuals' own computers, only material that resides on an ISP's own computer.

Overruling the D.C. District Court, the D.C. Circuit Court of Appeals agreed with Verizon. In January 2003 Judge Bates had rejected Verizon's interpretation of the DMCA subpoena provision, ordering disclosure of the subscriber's identity. The decision was appealed, and in the intervening time Verizon sought to quash a second subpoena. In December 2003, the D.C. Circuit found the subpoenas were not authorized by the DMCA. The Appeals Court granted Verizon's order to quash the second subpoena and vacated the order enforcing the first.

Significant issues raised:
Consumer Privacy; Anonymous Speech; Due Process

Outcome: Copyright holders cannot use pre-litigation DMCA subpoenas to get identifying information for peer-to-peer filesharers and must instead file John Doe lawsuits and seek the information using ordinary discovery processes.

In 2005, Macrovision sued Sima to block the sale of the Sima CopyThis! (CT-1, CT-Q1, CT-100, CT-2, CT-200) and GoDVD (SCC, and SCC-2) products, which are designed to digitize analog video, such as the analog video outputs of DVD players and analog VCRs. The Macrovision Analog Copy Protection (ACP) signals often embedded in these analog outputs, however, do not survive the digitizing process, and therefore are not embedded in the outputs of the Sima devices. Macrovision argued that this violates both Macrovision's patents and the DMCA's prohibition on circumvention.

In April 2006, the district court agreed with Macrovision and issued a preliminary injunction against Sima. The court amended and refined its ruling in May 2006. Sima appealed the ruling.

In the appeal, EFF joined the CEA, HRRC, library associations, and CCIA in filing an amicus brief on behalf of Sima arguing that digital devices that ignore and remove Macrovision signals do not violate the DMCA, both because Macrovision's ACP technologies do not qualify for protection under the DMCA and because Sima's devices do not "circumvent" within the meaning of the DMCA.

Unfortunately, Sima and Macrovision settled their dispute before the appeal could be decided, leaving for another day the important question of whether Macrovision's analog signals qualify for DMCA protection.

Printer maker Lexmark sued chipmaker Static Control Components (SCC). SCC produced replacement microchips that enabled printer cartridge remanufacturers to refill laser toner cartridges and sell them more cheaply. Lexmark claimed that SCC circumvented Lexmark's access control technologies and infringed its copyrights by "reverse engineering" its printer toner cartridges in the course of developing its replacement chips. The copyrights in question were to Lexmark software contained on its toner cartridge chips.

Lexmark cited provisions of the Digital Millennium Copyright Act (DMCA) in the lawsuit. The district court ruled in Lexmark's favor, then Static Control appealed to the Sixth Circuit. EFF filed an amicus brief to the appeals court supporting Static Control.

The Sixth Circuit ruled in favor of SCC, holding that (1) some of the Lexmark software was insufficiently creative to deserve copyright protection and (2) the authentication handshake did not effectively protect the software because printer owners could directly access the software through other open interfaces.

While an important victory against the anti-competitive uses of the DMCA and digital rights management (aka "technical protection measures"), the Sixth Circuit ruling likely will not prevent companies from trying tactics similar to those used by Lexmark in the future.

In addition, Lexmark is also using patent law to restrict competition in secondary markets for refilled toner cartridges.

This is a mind-bogglingly absurd case involving circumvention, in which Chamberlain Group - which holds a rather broad patent for "A Coding System for Multiple Transmitters and a Single Receiver for a Garage Door Opener" - contended that the small Canadian company Skylink was violating the DMCA by selling remote control devices that work with Chamberlain garage door openers. Chamberlain argued that Skylink's remote control device circumvents access controls to a computer program in its garage door opener.