Re: [dvd-discuss] Slightly OT - Japanese copyrights

[Bruce Thompson <bruce(at)otherother.com>]

On 2002.02.28 10:40 Noah silva wrote:
     [ snip ]
> 
> I have to disagree.  I didn't obtain just a physical media, I obtained
> the
> copy of music.  If I copy it to the MD, I have two physical copies, but
> only one legal copy.  This is ok since, what am I going to do, listen to
> both copies at once?

Here I think is where reasonable people can disagree and I think where it 
would be very interesting to consult what the law itself specifies. On the 
one hand I agree with your analysis if in fact the purchase of a CD is a 
licensing transaction. I don't believe that is the case. I do think the 
MPAA, RIAA et al would very much prefer that to be the case. I believe 
that when you purchase a copy of "a work fixed in a tangible media" (I 
believe that is the proper language of the statutes) that you are 
purchasing precisely that, a copy fixed on a particular medium in this 
case a particular CD platter. The post-first sale rights I believe derive 
from this in that I have the right to sell _this_ copy of the work. Rights 
regarding other copies that have been made for fair use of the copy are 
more muddy I think though we certainly agree on what is the ethical or 
proper thing to do in that case: destroy the copies or transfer them with 
the original.

I think we fundamentally agree on most points but I really do believe that 
the adherence of rights to the particular CD disc that was purchased is 
crucial to ensuring that first sale and fair use rights remain relevant. I 
believe that the studios' testimony in the DeCSS case regarding fair use, 
i.e. "Use a VHS copy for your fair use" derives directly from the view 
that a purchase of a DVD implies a license to a copy in the general sense 
rather than the purchase of a particular, specific copy with attendant 
post-first sale and fair use rights.

If the courts take the view that a purchase implies a license in the 
general sense then I think the studios arguments regarding fair use have 
weight and may prevail. On the other hand I believe that if the courts 
take the view that the purchase transaction implies the purchase of a 
particular copy then I blieve that the studios fair use arguments lose any 
relevance since they do not apply to the particular copy that was 
purchased.


> 
> If I want to sell the MD or CD, I think they are both equally valid, but
> the other should be transferred in the deal, or erased/destroyed.  I am
> transferring my right to a copy more than the physical media.  I blank CD
> is worth about $0.16 retail at microcenter this week, that's not what I
> paid for, I paid for the music.  If I sell it, I am selling the
> music.  Content owners may like to tie the media to the content, but the
> reality is they are seperate, and will only become more so, as copying
> becomes more practical and more of a normal activity.  MD players are
> quite popular in Japan.  MP3 players are getting fairly popular here.

As an interesting side-note, it used to be the case (and may still be for 
all I know) that if you were bringing software into Canada (say on a 
CD-ROM) the declared value was the value of the media only.

> 
> They need to start going after people that break the law in individual
> cases, unstead of people and products that make it easier.  Yes it's less
> efficient, but it's what they should do.
> 

Absolutely! That's difficult for them or not feasible? Too bad. They chose 
this distribution mechanism, they should deal with the unintended 
consequences of their choice.

>  -- noah silva

	Cheers,
	Bruce.