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When American Judges Are Luddites


In unparalleled display of ignorance, 2 courts strike at ownership and fair-use rights.

No matter how far technology progresses, legislation and bigger litigious companies will always impede something newer and better from being propagated. And if that technology provides more versatility and freer reign for the consumer, it will certainly take years before that product or service will be legally and widely available in its intended form.

More often that not, those obstacles will be enacted by folks who have absolutely, positively no idea how that technology actually works.

Displaying unparalleled blindness to the present and future of digital media, 2 recent court rulings struck a blow against ownership rights and fair use.

On August 11, San Francisco judge Marilyn Hall Patel decreed that RealDVD -- a DVD ripping tool made by RealNetworks (RNWK) -- violated the Digital Millennium Copyright Act and infringed upon copyrighted media. The decision was made nearly a year after 6 major Hollywood studios -- including Paramount Pictures (VIA), 20th Century Fox (NWSA) and Warner Bros. (TWX) -- filed an injunction against Real. The software was pulled a month after being released due to the lawsuit.

Just to be clear, RealDVD allows users to take a disc they legally own and copy it onto their computer for safekeeping or playback without a disc -- which falls under fair use and is virtually no different from iTunes (AAPL) taking music from a CD and putting it onto an iPod. Actually, the RealDVD software is far more limiting: Whereas iTunes allows for tracks to be easily copied and distributed, RealDVD only permits one copy on one hard drive.

On August 12 -- the day after the RealDVD ruling -- a California appeals court in San Jose reversed a 2-year-old decision that permitted the media company Kaleidescape to produce similar DVD-ripping software. Adding insult to injury, RealNetworks relied on the previous case as a precedent during its trial.

What happened to fair use? What happened to legal ownership? How is this any different from ripping a CD? Do the judges have any idea how many freeware products allow DVD ripping? Do they actually think that DVDs in their physical form will last forever? Do they even know what DRM is?

Call me crazy, but I don't think 71-year-old Marilyn Hall Patel and 73-year-old Eugene M. Premo -- who presided over the Kaleidescape trial -- should have any influence over where technology should be now or where it should be headed. When there's an injunction against AARP, I'll know who to call. But until then, I'd rather have a judge who knows how to file a majority opinion by email without 7 calls to their grandchildren.

And these aren't just isolated cases. This Luddite mentality extends deep into the government.

This past weekend, the Department of Justice weighed in on the $1.92 million penalty for Jammie Thomas-Rasset who shared 24 songs on a peer-to-peer network. What did they think of having a citizen pay $80,000 for each song that normally sells for $0.99? Quick summation: They're cool with it.

It's absolutely criminal that anyone should be penalized nearly $2 million for essentially lending out a CD. It's downright preposterous that software companies are taken to court for allowing consumers to make a copy of a DVD. And it's beyond ludicrous that a legislating body is dictating how people can use technology they legally own.
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