The Ghost of Copyright Past – Collisions in the Digital Paradigm V

It is not too often that I have a personal experience of a Collision in the Digital Paradigm where the law becomes head to head with technological reality, but the following post is inspired by a recent occurrence.

When we were in London in late 2014 we saw a number of shows. We were spoilt for choice but one we wanted to see – and had missed on earlier occasions – was “Jersey Boys”, the musical about the Four Seasons. The experience in London was a good one. We walked from where we were staying at the East India Club to the heart of Piccadilly, had a quick meal and then on to the show. It was great – well staged, well acted, very slick and professional as one would expect. And then there was the music. That was always great but there is something extra special about hearing Sixties music with the sound technology that is available today. Other experiences include the music of the Beatles, remixed and remastered for the Cirque du Soleil show “Love” and the music of Elvis again for Cirque du Soleil’s “Viva Elvis”.  Those opening chords of “Jailhouse Rock” never sounded better. Both shows, incidentally, were at Las Vegas. But back to “Jersey Boys”. I missed the movie was well, so I was delighted to see that it was available on Bluray and DVD.

Time for a rewind. I have rather eclectic tastes in movies and have taken advantage of the DVD revolution (which would never have happened had the movie companies not been forced into the new market model of VHS [and subsequently DVD) as a result of format shifting and the case of Sony Corp of America v Universal City Studios 464 US 417 (1984)) to build up a collection. I encountered early problems with region coding. Many of the movies I wanted were not available in our Region 4 part of the world. It was necessary to obtain a region free DVD player or a software workaround for the DVD player on my computer to view DVDs sourced from Region 1 or 2 outlets. I had some concerns. The state of the law under our s.226 of the Copyright Act 1994 seemed to be ambivalent about circumventing technological protection measures like region coding where there were no infringement implications and the copy of the DVD had been legitimately acquired. There was a frisson of concern when the decision in Sony Computer Entertainment v Ball [2004] EWHC 1738 (Ch) was released with the suggestion in that case that content owners could set their own terms and conditions of sale of their product in addition to the statutory scheme of copyright – essentially allowing for copyright by contract. But as long as there was no copying there was no question of infringement.

With the passage of time more and more region-free DVD players became available and it seemed that distributor based market segmentation and regionalised markets were on the way out. Then along came Bluray and an even more rigorous form of region coding was instituted. Bluray players were not region free. And this was the position for a while. It was about 2102 that I heard of a region free Bluray player that was available in New Zealand, but it was pretty expensive. On the other hand it had a whole lot a features that made it very attractive. In addition, there were models available for a fraction of the cost of the NZ product but these could not be shipped to addresses outside the US. Fortunately NZ Post with its wonderful Youshop service with the provision of a US mailing address came to the rescue so welcome region free Bluray and DVD player with all sorts of additional goodies like 3D. The Bluray market became open slather.

And what about those copyright concerns. As a result of the 2008 amendments to the Copyright Act the definition of a technological protection measure does not include a device that controls access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work) – see section 226 Copyright Act 1994. So circumventing access control mechanisms with  geographic implications – like region coding – is not viewed as any form of prohibited or infringing conduct. Thus, to circumvent a Region 1 (or A on Bluray) legitimately acquired disc to allow it to be viewed had no unlawful elements to it.

So back to the “Jersey Boys”. Having missed the movie and having enjoyed the stage show I purchased a Bluray version of the movie from Amazon. I addition to enjoying the show I was interested to see how Clint Eastwood made the transition from stage to screen. He is a fine director with some great credits. And the Bluray arrived. And inside was a little leaflet allowing me to add the movie to a Digital HD collection with Ultraviolet. This service, associated with an online retailer like Flixter enables access to movies in the collection on a number of devices. An advantage is that if one has a device like Chromecast a movie can be streamed via a computer or laptop and viewed on a TV screen. Great service and Chromecast is a great technology.

There is the leaflet with the code so that I can add “Jersey Boys” to my collection. I go to the Flixter site and enter the code, only to receive the message that the code is not valid for my region or territory. Once again it seems that region coding and market segmentation has hit the streaming video market. I am aware that this is a characteristic  or on-line content. Hulu and Netflix are available only to certain defined and regionally segmented IP addresses but it seemed to me that a legitimately acquired Bluray – that incidentally has NO region coding that was associated with an Ultraviolet code SHOULD be available world wide. I checked the fine print. Although I had obtained the copy from Amazon, there was a bold notice that the DVD was not for sale outside the USA or Canada. However, there was nothing on the Ultraviolet slip inside the case that suggested that the code was only valid for use inside the US or Canada.

I have always had difficulty with the idea of market segmentation. I have never supported the concept that content purchased from a particular geographical market could only be consumed within that geographical area. After all, a paperback book purchased in the US does not become “unreadable” as the plane leaves LAX. Why should DVDs or Blurays or Digital content be any different. The Internet has made markets global. The vendor from a suburb in Auckland who does business via the Web has a worldwide market – not just a local one. Similarly with those who sell and distribute on-line content. But the problem is that those most resistant to change in the Digital Paradigm are those who can benefit the most from it.

Why do I say that? Remember the case to which I referred earlier – Sony v Universal City Studios. That was a case where Sony, the developer of the Betamax videorecorder, sought relief from the US Supreme Court against the movie studios who sought to have the videorecorder banned because it was used for copyright infringement. Not so, held the USSC. There were substantial non-infringing uses, among them the concept of time shifting where one might record a show for viewing at a later time without engaging in infringement. The movie companies retired in disorder and then realised that the technology that they had tried to shut down could be used as an alternative means of movie distribution. In addition it meant that the back catalogue of the studios could be redistributed. This business model would have been lost if the Betamax case had been resolved in their favour. So the content distrbutors were – and to a degree still are – dragged kicking and screaming into the new Paradigm. DVD technology then replaced the videocasette and Bluray and streaming content will replace the DVD. But geographic segmentation remains the same – the ghost of copyright past.

When DVDs and digital content were in their early days, technological protection measures to guard against the wholesale copying of content were proposed. As Charles Clark said “the answer to the machine is in the machine”. In the same way there are work arounds to geographical restrictions – not only for region coded DVDs but also for streaming content. The legitimacy of such work arounds depends very much upon local law and the terms and conditions applicable to the product purchased.

It is not necessary to purchase the DVD or Bluray product to obtain the Ultra codes to add downloadable content to one’s library. Ultra codes are available for sale that allow this to be done. Once again the purchase of the code means that there are no infringement implications. So how does one avoid the “market segmentation” implications. As I say this depends on local law, but assuming that local law does not prohibit such workarounds, the use of a browser based anonymisation solution is probably the easiest and most user friendly way. Anonymox  is available both for Firefox and Chrome. The Firefox plugin works more effectively than the Chrome one, not the least because it showed the IP number and geographical location in the browser bar. But I emphasise, such a solution depends upon local law. It is not an offence in New Zealand to circumvent a TPM and a TPM does not include a device in place for market segmentation where the product has been legitimately acquired (although there may be contract implications). It is an offence under US law to circumvent a TPM. So one must be careful to comply with the law.

It is unfortunate that content owners are slow to recognise the new opportunities provided by the Digital Paradigm. It is unfortunate that content has not, until recently, been made available world-wide. This belated recognition now means that popular TV shows in the US are available within 24 hours of broadcast in the US – shows like “The Walking Dead”, “Arrow” “The Blacklist” and “Game of Thrones” come to mind. And what drove this? Piracy and content sharing. The content owners were reactive rather than proactive. And one can only wonder how long it will be before content owners wake up to the global market and get rid of this ridiculous hangover of region coding and market segmentation. It may have been understandable before the Internet Revolution. It has little if any relevance now.

But perhaps content owners prefer to adopt the well-known quote from Jean-Baptist Alphonse Karr – “plus ca change, plus c’est la meme chose.”

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