posted Nov 01, 2001

The Age: Video stores, Warner at war
Country Watch- Australia, DVD & DeCSS, Free Speech
'Warner simultaneously releases DVDs to the retail and rental market. They are color coded - silver for retail at a wholesale price of $24, and blue for rental, wholesaling at $55. When Warner threatened to sue video shops caught renting the retail-designated DVD, the association - representing 55 per cent of Australian video shops - took the offensive.'

'It argues that under the Copyright Act, Warner cannot restrict the rental of DVD movies. Warner, however, contends that a DVD is a computer program or software, and therefore it has the right to prohibit or restrict its rental, giving rise to a highly complex set of legal arguments without precedent in Australian or United States law.'

Every once in a while, I imagine it might be interesting to become an IP lawyer. But stories like this remind me why I couldn't be one. One of the standard lawyer tactics is to argue whatever's convenient at the time, regardless of long-term consequences, even for the company itself sometimes. (There have been lawsuits that have been dropped by the prosecution because winning would hurt the companies other interests too much.)

I would like to propose an interesting spin on this story, though: Should Warner Brothers win, then the following syllogism will hold:

  1. All movies are expressions that in America would be protected under the First Amendment.
  2. All movies are software (since all movies can be put on DVD).
  3. There exists at least one movie.
  4. Therefore, there exists software that in America would be protected under the First Amendment.

Once a single piece of software is over that line, it's going to be very, very hard to draw a line that includes movies, yet excludes other things.

This story hails from Australia, not the USA, but it would still probably have some interesting ramifications, even in Australia.

Note that in particular, DeCSS, a DVD decryption program, is trying to claim software-as-expression as a defense in the USA. Warner, a member of the RIAA, has gone on record now, at least in Australia, as claiming that DVD movies are an instance of a thing that is both software and an expression protectable under the First Amendment. I just couldn't be a lawyer without noticing this kind of "shoot yourself in the foot", unintegrated approach to legal issues.

(In computer science, we call this a "greedy" algorithm, which is a technical term. These algorithms are well-known for being cheap and convenient, but almost never optimal. Often that's good enough; I'd say this is an instance where it is not.)



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