RE: [dvd-discuss] Movie Downloads, automatically illegal?

[Tim Neu <tim(at)tneu.visi.com>]

On Fri, 2 Aug 2002, Kroll, Dave wrote:

> Tim,
>
> I think you're buying into the "License" argument too much:
>
> This all makes sense if you accept that when you hand over a Jackson
> for a DVD, you are buying a "license to view the movie".  If that is the
> case, I agree that regardless of the condition of the disc, you still own
> your license.
>
> But (IM non-lawyer O) if you stick with the traditional understanding of
> "Own it on DVD,"  then I think Richard is right.  Once the disc stops
> working, it's your problem to buy a replacement.  (Although I'm hard
> pressed to rationally explain why there is a distinction between
> using a backup copy you made and d/ling a backup from someone else.
> Perhaps because the person you are downloading from is "distributing".)

Not necessarily.  As an example, you own "The Stand" on DVD, I do too.

So far everyone agrees that the DVD itself has the properties of real
property and follows the normal rules of commerce.  Buy a piece of
plastic, sell, etc.

So far everyone also agrees that the owner of a particular copy of a DVD
has a reasonably established fair use right to make a copy (at least, from
their own DVD).

With these two "legal" concepts, you can media-shift from one person's
copy to another.

Let's say, for example, I want to download a VCD of the stand.  Out of the
goodness of your heart, you want to help me.  We can "legally" get this
done through the following convoluted but equivilent process:

1.  We trade DVDs.
2.  You make a backup copy of your DVD in VCD format.
3.  We trade back.  Backup copies flow with the original.

Done.

The same thing could be done in the shorter but equivelent process:

1.  You make a copy of your DVD in VCD format.
2.  You give that copy to me.

Any possible media shifting between multiple owners of a work can be done
by trading and making backup copies.

So, do we have to do the trade/backup dance for our transfer to be legal?

> Nevertheless, I think it's a false path to accept.  It's much easier to
> explain and accept that "You own the DVD.  You can do what you want
> with it."  Than, "You don't own the DVD, but the DVD is a token for a
> license
> to watch the movie.  You can't do everything you want with it, but the
> licensor is obligated to ensure that you have a useful copy."

Easier to explain - YES, I would certainly agree.  However, if you claim
the legal scenario works any way other than an implied license, than how
do people that go to Wall-Mart and buy The Lord Of the Rings on DVD become
authorized to watch it?

How can you buy a movie and NOT the right to use it?

I'm not stating that the licensor is in any way obligated to ensure that I
have a useful copy.  I am saying that the licensor should not prevent me
from making a useful copy, if I own the license.  Kindof like how backups
work now.  In theory, anyway, IP companies can't prevent me from making a
copy of the IP (movie, software, music, etc) in case something should make
the originals unreadable.

The same should apply to regaining licensed content to replace bad media:
A retroactive backup, if you will.

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