Re: [dvd-discuss] Fwd: Australian Court rules: Filmsaren'tsoftware

["John Zulauf" <johnzu(at)ia.nsc.com>]

Michael,

actually I think it could be very useful to denote all copies as
"copyright" copies as this requires that fair use be applied to the
utilization of digital media.  It also debunks CSS as "copy control" as
a copy is made with every viewing.  It is a "fair" copy and preventing a
fair copy cannot be a right of a copyright holder.  If then a TPM
control how fair copies are made (and whether they can be made for
"compatible players" time or shift, then the TPM cannot qualify for DMCA
protection.

If EVERYTHING is a copyright copy then fair use is fundamental to what a
TPM protects.  Claiming a TPM prevents copies is bogus since clear it
allows some copies to be made. It simply (mechanistically) asserts what
copies are fair, and what are not.  Clearly deciding what constitutes a
fair use is not a right of the copyright holder, but of the courts. 
Since circumvention of a fair-use-discriminator (which is what CSS and
the DVD-CCA constitute) is clearly not violating a right of the
copyright holder, the DMCA cannot apply.

.002

Michael A Rolenz wrote:
> 
> 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
> 
> 
>         To:     dvd-discuss@eon.law.harvard.edu
>         cc:
>         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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