Software licences in the dock

Three weeks ago the Paris Court of Appeal held that the CSS standard used to encrypt DVDs infringed a consumer's rights of "fair use" under French law. The consumer wanted to copy the DVDs to a VHS tape because his mother did not have a DVD player. This judgment is problematical (as it ignores various European Directives protecting encryption technology) and is likely to be appealed.

In the UK in June 2004, Mr Justice Laddie, who is one of our more technologically aware judges, came to the rather unusual decision in Sony v Ball that backup copies of disks containing copyrighted games were not permitted. The case was brought against the supplier of mod chips used to circumvent copy protection devices in the PlayStation 2. The disks are, of course, encrypted, and it is an offence in the UK to circumvent encryption technologies. A comparison suggests that French users have a better deal in certain circumstances.

What appeared to sway the UK court was a finding that CDs are robust and don't need replacing often, and that a replacement CD could easily be obtained from the rights holders. Well, I would challenge both assertions. How many scratched CDs do you have and would you waste your time trying to get a replacement?

Perhaps Mr Justice Laddie reaches the correct result, but the route he has taken may cause problems for IT staff. Many businesses have a disaster recovery "box" with copies of all the key software installation disks, serial numbers and information needed to set up a new site. Many software licensors may prohibit this in their software licences, but this does not accord with good practices.

I think it is fair to charge a licence fee for a full disaster recovery facility with failover capabilities or hot standby, but few licensors could reasonably object to their software being installed on a new system which replaces one destroyed by, say, fire.

The Copyright Designs and Patents Act 1988 (as amended) allows one to take reasonable backup copies without this being an infringement of copyright. Without this sensible provision all of our system backups would be illegal, as it would be impractical to exclude some software from system backups. It would also defeat the object of a backup.

Should the backup provisions in the act apply to CDs containing software? According to Mr Justice Laddie's judgment the answer is strictly speaking no. In my view his decision causes us more problems, particularly as there is no "fair use" doctrine in the UK (unlike in the US and France).

Everyone is ignoring this issue, but one day the courts will have to deal with it. In my opinion we need a clarification of the law, which is not keeping up with technological advances. This would benefit both licensors and licensees and my view is based on having a foot in both camps.