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

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

Good points. Digital data can be viewed as a set of configuration 
instructions for the computer (pixel 1 = black, pixel 1 = black...etc.) or 
as configuration information for a state machine. I think the court didn't 
want to deal with the other baggage associated with their definition of 
software.

The problem I've always had with the argument that the temporary copy in 
RAM or disk constitutes a LEGAL copy subject to copyright is that the 
media content providers have the means and money to hire engineers to 
explain HOW the technology they want to use works (e.g., DVD, CDs etc). 
They have lawyers galore. Now having released all this stuff then claim 
copyright infringment because of a process INHERENT in the technology. If 
ignorance of the law is no excuse, then certainly ignorance of the 
technology when you have the means to understand it and an obligation to 
do so should also. This is a case where the estoppel should apply. 




Bryan Taylor <bryan_w_taylor@yahoo.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
02/07/02 11:49 AM
Please respond to dvd-discuss

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


>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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