Windows Media Player user license extensions

[Martin Keegan]

On Thu, 4 Jul 2002, Matthew Astley wrote:

> > You don't need a license to read printed material, as there is no
> > breach of copyright by doing so. Their notice is not legally
> > enforcable.
> 
> My limited understanding of the recent Sony vs. Messiah (names?) court
> case is that it leaves this legal precedent: that you need a licence
> from the copyright holder to _use_ a legally obtained copy of software
> on a CD.

No, that's not what Sony v Channel said at all.

Sony v Channel was about s296 of the Copyright (etc) Act, which concerns
circumvention devices.

The position as regards use of software obtained via CD is the normal one:
if you're copying it (which you generally have to do in order to use it)
then you are liable for infringement unless you have a defence, and
there's a built-in defence for any lawful user of the software under s50C.
This avoids the preposterous position of having to have a licence for the
copy of the software which subsists in the RAM or in virtual memory.

The only reason this came up at all was that Channel was trying to
demonstrate lawful uses for the Messiah chip, and one of the classes of
such use involved persons *not* afforded the defence under s50C (private
importers).
 
> To anyone not trying to pin some restrictive licence to a set of
> compliant users, it should be obvious that this legal precedent is
> just a nasty side-effect of a court doing what it considered right by
> Sony, in helping them stem the flow of software the naughty pirates
> produce.

That's a travesty of the court's approach to Sony. The court was certainly
not trying to "do what it considered right" by Sony!
 
> The need for a licence to "copy" the software into memory is just
> wrong, according to what Derek writes of the copyright act. The
> copying into memory must surely be covered by whatever principle "fair
> use" is called over here.

It isn't, and it would be an unmitigated disaster if it were. Fair use
implies some sort of consideration of the economic effect on the
rightholder of copying his stuff. That should never be under consideration
in the case of transitory digital copies in RAM.

> To proceed to tell people that a licence _is_ needed to run software
> you legally own seems to me misguided. To propagate these views as if
> they are true will result in pressure to amend the Copyright Act to
> reflect the new view - ie. saying it too often will make it happen.
> 
> Worse still, even as I ask you not to do this I find I'm doing it
> myself. "sofware you legally own"? What law does this stem from?

Yeah, I was just about to point that out :)

> If Alice gives me a copy of a CD which _she_ made without a licence
> from the copyright holder, who has committed the crime? It appears to
> be Alice.

No, copyright violation is *not* criminal unless you're doing quite a lot
of it.

> What law makes mere possession of this copy illegal? How does this
> change when the copy is encrypted, or stated to be a backup?
> 
> By listening to or running this illegally made copy, which law am I
> violating?

Well, if it's in a digital format, then copying it into RAM may violate
the copyright again ... 

Mk