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.

In Arista v. Lime Wire, the recording industry plaintiffs seek to hold Lime Wire liable for acts of copyright infringement by users of its software. The case is among the first to apply the inducement doctrine announced by the Supreme Court in MGM v. Grokster in 2005.

EFF and a coalition of industry and public interest groups filed an amicus brief urging the court to apply the law in a manner that will not chill technological innovation and to reaffirm that developers should not be held liable for copyright infringement based on misuses of their technology that they did not actively promote. In particular, the brief urges the court to preserve the Sony Betamax doctrine, which protects developers of technologies capable of substantial noninfringing uses from contributory infringement liability based on the activities of end-users. EFF was joined on the amicus brief by the Center for Democracy and Technology, the Computer and Communications Industry Association, the Consumer Electronics Association, the Home Recording Rights Coalition, the Information Technology Association of America, Public Knowledge, the Special Libraries Association, and the U.S. Internet Industry Association.

EFF has asked a federal court to reject efforts by Echostar to get the names and addresses of every customer that purchased a free-to-air satellite receiver. Echostar claims that the receiver can be modified to pirate DISH satellite TV programming. EFF argues that Echostar's demand, which seeks all purchasers regardless of whether they actually pirated DISH TV, would violate user privacy and leave innocent purchasers vulnerable to bogus legal threats.

On Sept. 29, 2008, Magistrate Judge Seeborg agreed with Freetech and EFF, refusing to allow Echostar to obtain the identity and contact information of every individual who purchased a Freetech receiver. The court concluded that "the requests for customer lists ... could lead to the perceived harassment of legitimate users and a cocomitant chilling effect on the purchase and lawful use of Freetech's FTA receivers."

Last October, Jammie Thomas was found liable for copyright infringement for file sharing, and hit with a $222,000 judgment. Thomas' case was the first file sharing lawsuit to reach a jury verdict.

On May 15, 2008, Judge Michael Davis requested briefing on whether Thomas should receive a new trial. The court said it was concerned that it might have made a mistake by instructing the jury that Thomas could be found liable if she simply made copyrighted songs available in a shared folder. There's good reason for this concern — as EFF noted at the time, and several courts have since affirmed, "making available" is not a cause of action under copyright law. EFF weighed in as amicus in June of 2008.

On September 24, 2008, the concluded that simply "making available" is not a distribution, and on that basis granted Thomas a new trial. The judge also called upon Congress to amend the Copyright Act, to avoid the award of damages in P2P cases that are "unprecedented and oppressive."

EFF filed an amicus brief in Atlantic v. Howell, an Arizona lawsuit brought as part of the RIAA's national campaign against individuals for file-sharing. Although the case also received attention over the issue of whether CD ripping is legal, the main event in the case was about something different: can the RIAA sue people for attempted copyright infringement?

EFF's brief says no, as have several courts. The district court agreed on April 29, 2008, in an order denying the recording industry's motion for summary judgment on the "making available" distribution issue.

In August 2008, the record industry plaintiffs prevailed against Mr. Howell based on their allegations that Mr. Howell destroyed necessary evidence before trial.

In Quanta v. LG Electronics, the Supreme Court has been asked to reaffirm the patent exhaustion doctrine, which entitles consumers to use, repair, or resell patented products that they have purchased. Despite clear Supreme Court precedents supporting the exhaustion doctrine, the Federal Circuit Court of Appeals has broken with this established principle, treating the doctrine as simply a "default rule" that patent owners can evade by attaching conditions to their products.

The issue is of increasing importance to consumers, who often face "single use only" and "not for resale" labels on patented products, interfering with legitimate activities and secondary markets. Lexmark, for example, has used "single use only" labels to limit the market for refilled toner cartridges. Similarly, "not for resale" labels could interfere with second-hand and refurbished product sales on eBay and Craigslist.

EFF filed an amicus brief on behalf of Consumers Union, EFF, and Public Knowldege, urging the Supreme Court to prohibit patent owners from using patent infringement suits to enforce these kinds of post-sale use restrictions on the products they sell.

On June 9, 2008, the Supreme Court issued a unanimous ruling reaffirming the patent exhaustion doctrine, ruling that LG's patents had been exhausted when patented chipsets were sold to Quanta. For additional analysis, read the Deep Link about the ruling.

Online CD Seller Fights Universal's Bogus Infringement Allegations Record Industry Claims Would Undermine Right of 'First Sale'

An eBay seller is taking on Universal Music Group (UMG) in court after the record industry giant targeted his online music sales with false claims of copyright infringement. EFF and the San Francisco law firm of Keker & Van Nest LLP are representing Troy Augusto, whose online auctions included sales of promotional CDs distributed by Universal. Copyright law's "first sale" doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder. Nevertheless, Universal claims that CDs marked as "promotional use only" remain the property of Universal and thus can never be resold.

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.

EFF defended a target of a recording industry lawsuit, filing a brief in a New York district court urging the judge to allow the man to fight back with counterclaims of his own.

The Recording Industry Association of America (RIAA) has already moved to dismiss copyright infringement claims against Rolando Amurao. But Amurao alleges that the RIAA intended to harass him, and that their case is meritless. He has countersued for a declaration of non-infringement and a finding of RIAA copyright misuse. In its amicus brief, EFF argues that giving Amurao his day in court increases RIAA accountability in the industry's broad lawsuit campaign against file-sharing.

The RIAA has sued thousands of individuals for allegedly sharing music over the Internet since its campaign began in 2003. But sloppy investigative methods have left innocent people entangled in expensive and draining legal proceedings. When the RIAA threatens someone with a lawsuit, it offers to settle the case for a carefully chosen sum that is smaller than the legal fees required to fight the accusations. Faced with this choice, some innocent people settle simply because it's the most affordable option. However, a few individuals like Amurao have decided to battle the RIAA in court. In one Oklahoma case, EFF provided amicus support to an innocent target of a file-sharing lawsuit who is fighting to have the RIAA reimburse her attorneys' fees.

• Press Release: Recording Industry Target Deserves Day in Court April 10, 2007

The Motion Picture Association of America (MPAA) announced that the major Hollywood motion picture studios would be filing hundreds of lawsuits against individuals using peer-to-peer (P2P) file-sharing software to access movies online. In so doing, Hollywood follows in the footsteps of the music industry, which has filed more than 6,000 lawsuits against file sharers since September 2003.