[ILUG] Legailty of DVD Playing in Ireland

[Niall Walsh]

Hi everyone,

something that continuously intrigues me is the current status of using 
Free Software to play DVD's here in Ireland, is it legal or not and what 
is the status of distributing such software?

One thing I thnk we _should_ be able to rule out are the patent issues, 
as software cannot be covered by Patents in Ireland/Europe (despite the 
fact the Patents Office has issued 30,000+ and the Council of Ministers 
is attempting to railroad them in). So that should mean at least we 
(Irish people) don't have to pay the DVD-Forum for each copy of our 
software (especially with the increasing amounts for proper sound 
decoding). Of course by implication I am suggesting that there is no 
problem with Linux distributions in Ireland shipping Mp3 codecs.

The thing I am far from certain about is the act of de-CSSing a DVD to 
play it. IANAL but to me there seems to be conflicting opinions in the 
relevant law. I know that someone has been prosecuted for selling 
Playstation mod chips here in Ireland (which allow you to backup your 
games) which provides hardware circumvention of a copy protection 
device, despite the legitimate uses, this makes me think that libdvdcss 
and the like are likely also problematic, but one was a physical object, 
the other software, does this matter?

Looking at the Irish Copyright Act from 2000 there are numerous sections 
which seem to have relevance:

II.5.46
http://www.irishstatutebook.ie/ZZA28Y2000S46.html
*46.*—(1) A person infringes the copyright in a work where he or she, 
without the licence of the copyright owner—

(/a/) makes,

(/b/) sells, rents or lends, or offers or exposes for sale, rental or loan,

(/c/) imports into the State, or

(/d/) has in his or her possession, custody or control,

an article specifically designed or adapted for making copies of that 
work, knowing or having reason to believe that it has been or is to be 
used to make infringing copies.

Does software constitute an article? Could a copyright holder use this 
section against something like libdvdcss which is not (to my mind) 
specifically designed or adapted for _that_ work. Also would you have 
reason to believe it _has/is_ being used to make _infringing_ copies as 
oppossed ot legitimate copies (more coming on them).

II.6.87
*http://www.irishstatutebook.ie/ZZA28Y2000S87.html
**87.*—(1) The copyright in a work is not infringed by the making of a 
transient and incidental copy of that work which is technically required 
for the viewing of or listening to the work by a member of the public to 
whom a copy of the work is lawfully made available.

The above exception says to me that it is just fine to do whatever 
copying is required to play a DVD you are entitled to throw into a 
player. The question is what does "technically required" mean? Does it 
mean that if you could have gone and bought a specialist player for 
€10million you aren't technically required to create a transient copy? 
Does it mean that if you want to make a copy of a cd to your ipod so you 
can listen to it, it was a technical requirment for listening on your 
ipod so you are allowed to do it? Does it just mean that the fact you 
are making a copy of the movie on your screen isn't copying and is 
therefore allowed? It seems like very open language, but no doubt it is 
believed to have a precise meaning.

VII.1.370
http://www.irishstatutebook.ie/ZZA28Y2000S370.html

*370.*—(1) This section applies where, by or with the licence of the 
rightsowner—

(/a/) copies of copyright works to which rights protection measures have 
been applied or recordings of performances to which rights protection 
measures have been applied, are made available to the public

(2) A person who makes available to the public or re-utilises the copies 
referred to in /subsection (1)/ has the same rights and remedies against 
a person who—

(/a/) (i) makes,

(ii) sells, rents or lends, or offers or exposes for sale, rental or loan,

(iii) imports into the State, or

(iv) has in his or her possession, custody or control,

a protection-defeating device, knowing or having reason to believe that 
it has been or is to be used to circumvent rights protection measures, or

(/b/) provides information, or offers or performs any service, intended 
to enable or assist persons to circumvent rights protection measures,

as a rightsowner has in respect of an infringement of any of his or her 
rights under this Act.

The start of the kicker, especially for us section 2.b. That seems to 
say that providing libdvdcss is illegal as it provides information to 
enable the circumvention of rights protection measures. I do wonder what 
"made available to the public" means in section 1.a but it doesn't end here:

VII.1.374
http://www.irishstatutebook.ie/ZZA28Y2000S374.html

*374.*—Nothing in this Chapter shall be construed as operating to 
prevent any person from undertaking the acts permitted—

(/a/) in relation to works protected by copyright under /Chapter 6/ of 
/Part II/,
or from undertaking any act of circumvention required to effect such 
permitted acts.

So this says that the Digital Rights Management section shall not 
prevent anyone undertaking the acts permitted in II.6.87 which are 
making transient and incidental copies required for the viewing of or 
listening to the work by a member of the public to whom a copy of the 
work is lawfully made available.

The problem is that while this seems to say I can play DVD's, does it 
also say that anyone can do whatever they want with regards to selling 
devices which get around the digital rights protection so as to allow 
people more convient viewing/listening? I have noticed that DVD players 
are commonly advertised as "region-free" which is circumventing a 
protection measure, but how does that stack up compared to an Irish 
Linux distribution shipping an equivalent software dvd player (e.g. vlc)?

Do we have to start turning ourselves in? Could I be arrested if I stood 
on Grafton Street handing out a Free DVD player (say a knoppix-alike 
which also held vlc installers for Windows and Mac), what if I sold them 
for €5 (including all source on the cd of course), what if I pre-install 
such a system onto a computer?

To complicate things even further, _they_ could probably (depends on 
what an independent work means) argue that a DVD is in fact a database 
("database" means a collection of independent works, data or other 
materials, arranged in a systematic or methodical way and individually 
accessible by any means but excludes computer programs used in the 
making or operation of a database;) and then that pulls in a further 
chuck of law!

Does anyone have any reasonable references to analysis of these issues 
under the Irish legal system or would anyone know just how this could 
best be sorted out so we know whether we are like France, where working 
on vlc is fine, or like the USA where just having vlc on your hard drive 
is probably illegal!

Niall Walsh

NOTE: I have clipped "irrelevant" sections from the sections of the Act 
quoted above so as to try and keep this email a bit tighter. The urls 
are there and here are the general urls to get yourself to the index of 
the act.

http://www.irishstatutebook.ie/front.html
http://www.irishstatutebook.ie/2000acts.html
http://www.irishstatutebook.ie/ZZA28Y2000.html