Re: [dvd-discuss] Fwd: Australian Court rules: Films aren't software

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

>Outrageous excerpt:
>In addition to claiming that a video on DVD is actually software,
>rather than a movie, Warner tried to convince the court that simply
>playing a DVD movie should be considered an act of "copying":
>
>"Warner said a person playing the DVD was actually making a copy of the film
>because images and sound from DVD films were stored in the random access
>memory (RAM) of a computer or a computer contained within a DVD player."

Actually, I agree with both of their statements. It still annoys me that the
EFF never made the "a DVD movie is software" argument.

A DVD is, in fact, "software" in any sense of the word, and in particular in
the *very broad* definition provided by the Copyright Act, (which is why Kaplan
was flat wrong in his 1201(f) analysis). Separately true and much easier to
establish using legal precedent is the claim that viewing the movie requires an
act of "copying". This is no different that the copying that occurs when an
installation of software is made or the in memory copies that occur when it is
used. It happens that such acts of copying are "non-infringing use" when done
by the "owner" for "utilization in a machine". This is an explicit statutory
provision (17 USC 117) for software. The definition of "software" in the
Copyright Act was deliberately chosen to be very broad precisely because
Congress wanted it to include all digital content which must be installed on a
computer.

Even for non-software video (like a VHS tape), first sale provides the owner
with the right to view (see the PREI case), and I would argue that an implied
licence exists to do copying whose only purpose is to enable viewing. If it's
not an implied licence, then it's simply an ordinary "fair use". 


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