ARCHIVED — A Rhonda Hyslop

COPYRIGHT REFORM PROCESS

REPY COMMENTS

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Reply comment from Rhonda Hyslop received on October 02, 2001 via e-mail

Subject: CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES (Reply comment)

In the comment from Ryan Peters dated July 24, 2001, he writes:

"To emphasize why this is needed, let us take an imaginary program that allows DVD's to be decrypted. This program is the most widely used and popular method to decrypt DVDs on linux. While this program will allow movies to be decoded and hence possibly be easily distributed, and even if we assummed that is what it is primarily being used for, it should still be legal, as it may be the only option consumers can find to play their DVDs on linux. Any infringing use of the tool is still protected under standard copyright law, and infringing persons can be prosecuted under that. An additional law to protect the encryption scheme only serves to enforce the movie makers' monopoly on "authorized players", which is not something that should be protected by law.

However, should another tool that allows decryption of DVDs as well as functionality to distribute such material come along, the only fair-use use this has is the same as that provided by the other decryptor. Being a new tool, it is more difficult for users to get, and as such the majority of users who go out of their way to get this tool over the existing decryptor (assuming both are similarly priced) can be safely assumed to be using it for the distribution functionality, which is an infringing purpose, and as such this tool may be prosecuted by law."

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I agree with the first paragraph of this statement, but I strongly disagree with the second. A tool that is newer is not necessarily more difficult to get, or less likely to be used for legal purposes. For a simple example, look at WinAmp and Windows Media Player. WMP comes pre-installed with windows, but many people download WinAmp to replace it. A program that superficially does the same thing (in this case, plays media files, in Mr. Peters' example, decodes DVDs) and has added features that may be used for infringement is not necessarily primarily used for infringement. The sound or video quality may be better; it may be a smaller program and run faster on a given computer; it may simply have a user interface that people like better. The second-comer should not be penalised for being second, nor for having more functionality. The law should be directed at the person using the tool for infringing purposes, not the tool itself, and existing law performs this function already.

-Rhonda
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