Re: [dvd-discuss] WIPO + DMCA

[Jeme A Brelin <jeme(at)brelin.net>]

On Wed, 29 Aug 2001, Ballowe, Charles wrote:
[snip]
> there seems to be some contradiction between actions with regard to
> the DMCA and some sections of the WIPO treaty.
>
> >From the WIPO treaty:
> 		Article 4 - Computer Programs
> 	Computer programs are protected as literary works within the meaning
> of Article 2 of 	the Berne Convention. Such protection applies to
> computer programs, whatever may be 	the mode or form of their
> expression. 
> 
> To me, covering computer programs as literary works would automatically give
> them full First Amendment protection. The court seems to be saying that
> programs are devices and not literary works. If the DMCA was really meant to
> bring the U.S. into compliance with the WIPO treaty, shouldn't the wording
> of the WIPO treaty be taken into account when applying the DMCA?

The contradiction you're seeing is not a contradiction between the DMCA
and the WIPO, but the essential contradiction between the First Amendment
and the Copyright clause.

Software is a "literary work" in the context of copyright.

Software is a device in the context of expression.

This is the sort of pro-business, antisocial double-speak we're seeing all
through our public policy.

Personally, I see it in exactly the opposite way.  Software is meaningless
to copyright because of the inherent inability to distinguish between the
copyrightable parts and the "obvious" and between derivative works and new
expressions.  But clearly software is one way to communicate information
and communication should be free and it is society's role to ensure that
freedom.

J.
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     Jeme A Brelin
    jeme@brelin.net
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