The hearing to decide whether RealNetworks is allowed to sell its RealDVD duplication software wrapped up yesterday in San Francisco, with the company being denied the chance to introduce a last minute witness.
Real had wanted to file testimony from Peter Biddle, a 'difficult-to-find' former Microsoft executive who had worked to formulate the CSS encryption at the heart of case, and who apparently was going to say that the intent of CSS was never to forbid all cases of DVD copying.
However, Cnet reports that judge Marilyn Patel rejected Real's final hour appeal, saying that she was able to located Biddle on Google 'within three minutes'.
This isn't the first legal surprise Real has unveiled. Last week, the Seattle-based software and media company filed a separate anti-trust suit against the major Hollywood studios, claiming that they formed an illegal cartel to fix prices, stifle competition and enforce a group boycott against RealNetworks.
These last minute moves are widely seen as a sign that Real feels less than confident in winning its main case, which alleges that its RealDVD software infringes the Digital Millennium Copyright Act (DMCA) by circumventing encryption intended to restrict the duplication of copyrighted films.
In closing arguments, lawyers for the studios denied that consumers ever have the 'fair use' right to make even a single copy of their DVDs, regardless of whether of not that copy is locked to a single computer or player.
They also noted that RealDVD had itself previously won a case against a company used of circumventing the DCMA to copy Real's streaming music - which could lead to a summary judgment against them.
In response, Real pointed out the music industry allows consumers to make digital copies of their music CDs and argues that, as licencees to the CSS encryption system, they cannot be accused of circumventing.
A ruling in the case is expected shortly.