Copyright for DVDs - High-Tech Development - Blessing or Curse?

Table of Contents

1 Introduction
1.1 Abstract
1.2 Objective of the Paper
1.3 Procedure of Analysis

2 Movie Protection
2.1 The Copyright Owners Preventive Strategy
2.2 The Great Cases of “DVD Jon” and Others
2.3 Copying DVD’s and Digital Devices for Backing up
– legal or illegal?
2.4 Is a DVD a Software?

3 The Moral Battle
3.1 MPAA
3.2 EFF

4 Conclusion

Bibliography

1 Introduction

“It may be said that copyright law is now at the critical stage of its history…”,^[1] Sterling states in his book World Copyright Law.

In the past decade music piracy has become a well documented problem. However, there exist more forms of piracy, which will be addressed in that paper. Despite of the peer-to-peer piracy, the direct copy piracy of purchased products is a separate issue. The Hollywood studios have been the most active companies in preventing piracy of films. When DVD’s (digital versatile discs) where released, they spend a vast amount of money on research for piracy protection.

Piracy protection is not an easy task - neither for copyright owners nor for politicians. Moreover, a great number of competing interests clash and different views exist concerning copyright law. One of the key issues is the argument about the question of “fair dealing” (or “fair use”), which is provided in several jurisdictions under certain conditions.

Furthermore, new technology provides easy access to material (Internet) and devices (CD/DVD burner) to infringe copyright law without much effort and knowledge. According to the Sydney Morning Herald, Industry analysts recently dubbed the DVD player the fastest-selling consumer electronic item in history. More than 100 million households worldwide now own one, and Australians have joined the buying frenzy, with sales of DVD players and discs expected to top $1 billion as early as next year, largely due to rapidly falling prices. Six years after it was introduced to the Australian market, the DVD has made its way into 45% of households, outstripping our previous take-up of new technology. By the end of 2002, 22% of Australian homes owned a player, says Nielsen Media Research. That number climbed to 35% in May.^[2]

Since the new development of DVD, which compresses for example video data for storage and can hold a minimum of 4.7 GB of information,^[3] the risk of easy illegal copying increased. Hollywood reacted immediately after realizing that they were suffering economical losses and that their rights as copyright owners were infringed. They also developed a strong lobby, where they fight against copyright piracy.

1.1 Abstract

Following up the last mentioned development, the copyright of DVD’s and the protective sanctions, which the copyright owners of the film industry imposed, will be the central focus of the assignment. However, the paper will not address the issue of downloading film data from the Internet. For the purpose of that paper, the question of backing up purchased DVD’s will be the major focus.

Under the Copyright Act 1968 (Cth), film is defined under secondary work. In order to distinguish works from secondary works, the Copyright Act 1968 defines “protection of forms of expression that are artistic, literary, dramatic and musical items”^[4] as works, whereas mechanical rights, “such as films, sound recordings, television broadcasts and published editions”^[5] are defined as secondary work. The reason for that differentiation is that secondary work is generally based on a work. However, the copyrights exist independent of each other simultaneously.^[6]

Furthermore, “film is defined as the aggregate of visual images capable of being shown as a moving picture, including the soundtrack.”^[7] This also includes movies which are made by computer animation, such as Finding Nemo for example. Moreover, even interactive video games fall under the definition of film since the decision of Saga Enterprises LTD v Galaxy Electronics Pty Ltd (1997) 147 ALR 2. However, the paper will not deal with cinematographic films defined under that case (interactive games) but will only focus on movies in a classical understanding.

As previously mentioned, the film industry developed several protective strategies, which were supposed to resist against copyright piracy. However, the copyright owners had to face several bitter discomfitures. A 15-year-old Norwegian used basic mathematic formulas and cracked the protective code. New high-tech technology offers devices for easy DVD copying of already purchased products. The segmentation of the market in several area codes is facing the test of the infringement of competition law. Also subject to the question of competition law was the question dealt with in the Australian case Australian Video Retailers Association Ltd v Warner Home Video Pty Ltd [2001] FCA 1719, where Australian Video Retailers refused to accept the Warners approach of introducing two different DVD types on the market, one for retail and one for rental. The rental version was almost twice as much in price than the retail version. The court did not support the price discrimination of Warner, thus, the approach failed.^[8] In recent years, copyright of DVD’s was one of the major concerns, which were dealt with in the courtrooms.

1.2 Objective of the Paper

This paper deals with the issue of copyright law with focus on DVD’s, containing “classical” movie data content. Herein, it uses case examples solely from US American courts and Australian decision to illustrate the risks and protective attempts of the film industry.

The moral obligations and the two contrary viewpoints of copyright users and owners will be spotlighted.

Due to the rapid growth of easy access to cinematographic data in the past ten years in conjunction with the improving devices for facilitating copying digital data, the question arises whether this development is a blessing or curse for the film industry in particular.

1.3 Procedure of Analysis

The following analysis is divided into three sections. The first part deals with the attempt of the film industry to protect their secondary works. Subsequently, some cases will be highlighted to prove which risks the copyright owners have to deal with. Afterwards, the question whether copying DVD’s and digital devices for backup are illegal or not will be addressed. The first section ends with the discussion about whether a DVD can be regarded as software and therefore applies to legal backup.

The second section introduces the controversial viewpoints of two organizations, which have a contrary perception of the term “fair dealing” (“fair use”). This part focuses on the moral obligation and leads to some policy questions.

The final section tries to wrap the analysis up by making some comments on the current situation.

2 Movie Protection

Movie protection is an issue which has become significant in the past decades. The movie industry has introduced a great number of different preventive strategies in order to control and stem the movie piracy. Yet, there has not been find a secure system, which cannot be infringed upon.

2.1 The Copyright Owners Preventive Strategy

In the past decade, two major preventive strategies were introduced from the copyright owners in order to limit the hardcopy infringement of ripping DVD’s.

1. Region coding is the first weapon the Hollywood bosses threw on the market. This is the segregation of the market in five different areas, which leads to the consequence that DVD’s can only be played in the geographical region, which the code applies to. Unfortunately, the Chinese sold players, where all codes were saved. Consequently, the users could watch DVD’s regardless which regional code underlies. As a result of that development, the copyright owners introduced RCE (region coding enhancement), which was supposed to resist against any code hacking.^[9]

2. CSS (content scrambling system) is the other preventive strategy the film industry tried to stop copyright piracy. CSS is an encryption system, in which all video and audio data are scrambled in an intended unbreakable code.^[10] CSS is created in order to make it impossible for ripping devices, such as a DVD burner, or any software, such as Nero to create copies of DVD’s. As it will be explained under the next paragraph, this system got cracked.

2.2 The Great Cases of “DVD Jon” and Others

Unfortunately enough for the film bosses, a case caused great international furore, when their protection system was defeated. In 1999, a 15-year-old Norwegian called Jon Johansen cracked the CSS code by using basic mathematic formulas. Although Johansen rejected that in interview given to LinuxWorld and stated to the reporter that a German member had invented the code, which also belonged to the group MoRE (Masters of Reverse Engineering).^[11] Jon was acquitted on all counts versus MPAA, because the court held that it could not be proven that Jon had invented DeCSS for illegal purposes. Instead, they accepted his claim that he only invented DeCSS for watching already purchased DVD’s of his. Therefore, the Norwegian Criminal Code section 145 (2) could not apply and Jon was acquitted.^[12] However, the case of “DVD Jon” is legendary now and showed the copyright owners that their preventive strategies have failed.

The case continued in Universal City Studios Inc v Reimerdes^[13] in the US 2nd Circuit Court of Appeals. In that case several film studios, members of the MPAA claimed for violation of the Digital Millennium Copyright Act, Sec. 1201 that 2600 Enterprises INC. has infringed their right as copyright owners by publishing and linking to the DeCSS code “invented“ by Jon Johanson. The court held that DeCSS was an unlawful circumvention device. This case proved to be a fierce fight between two moral exponents, which will be discussed under point three.

[...]

^[1] Sterling, J. World Copyright Law, p. 6.

^[2] http://www.dvdforum.org/press-newsdigest.htm.

^[3] www.dvddemystified.com/dvdfaq.html.

^[4] Quirk, P., Forder, J., Electronic Commerce and The Law, p. 181.

^[5] s. above, p. 181.

^[6] s. above, p. 181.

^[7] s. above, p. 187.

^[8] Morrison, V., No support for DVD price discrimination, Copyright World, http://www.copyright.org.au/PDF/Articles/A02n01.pdf.

^[9] Yates, D., DVD and CD copying: a legal guide, Australian PC Users, p. 64.

^[10] www.dvdcaa.org/faq.html.

^[11] Kelly, J.S., Meet the kid behind the DVD hack, www.cnn.com/2000/TECH/computing/01/31/johansen.interview.idg/index.html.

^[12] Unknown, MPAA Lose Case on DVD Copyright, www.megagames.com/news/html7pc/mpaalosecaseondvdcopyright.shtml.

^[13] http://laws.lp.findlaw.com/2nd/009185.html.