Legal Problems Surrounding Software Streaming Technology
Legal Problems Surrounding Software Streaming Technology
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  • 승인 2004.10.01 12:01
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Yoon Sun-hee
Prof. of Hanyang University Law College
Seeking a Common Ground Between Corporate Copyright Holders and Consumers is Urgent

When computers were introduced for the first time, computers were regarded as goods solely for use by computer experts. However, as more households came to own more than one computer and the Internet was introduced, many changes came about. The combination of the "byte" and the "net" has brought about a rapid change in the society, impacting upon the lives of ordinary people.

Although all these changes have been caused by technological developments, the technology itself has been developing at top speed. Accordingly, it is becoming difficult to enact or revise laws to effectively cope with the welter technology being introduced. A case in point of the estrangement between technology and the law is the current controversy surrounding software streaming.

Specifically, there exists a confrontation between a company holding copyright and users, and between a company holding copyright and SOFTonNET, which has developed the Z!Stream software streaming technology. Moreover, the Ministry of Information and Communication and the Electronics and Telecommunications Research Institute (ETRI) that spearheads the development of the technology, and the domestic and foreign companies holding copyright are also in confrontation with each other, making the issue an even more serious one.

In the following article, I would like to cast some light on the origins of the software streaming issue and what is at stake in its resolution.

Concept of software streaming

Software streaming refers to the technology that enables users to use software in a computer without the normal installation process. This was previously an essential step in getting all software to work on a computer.

When users apply to use software streaming over the Internet, they may download some of the necessary software from the central server to use it their computers. The existing streaming method divides a big file into smaller ones and transmits them in order for sequential reproduction of movies, music and other contents. In software streaming, however, contents that are difficult to place sequentially are downloaded at the request of users. Accordingly, the technical implementation of software streaming is more difficult than the existing streaming technology.

To solve the problem of non-sequential execution in software streaming, both the server and the user's computer acquire certain services through a process of application and response.

However, such applications and responses executed more slowly compared to the installation of existing software. To address this technical problem, a method is employed whereby received data is saved in the client's computer after creating a separate file. The Z!Stream service now in operation in Korea uses such a technology.

Technical implementation of software streaming

Under the existing method of software installation, a driver was used in individual software-receiving computers.

Accordingly, it was difficult for a software manager to grasp which software should be used where.

In case of software streaming, however, those hoping to use downloadable software must to connect with the network to drive the software. In this case, a network manager could be in full control of the users' software.

To implement software streaming, it should be driven under an operating system. To settle these problems, software streaming calls for users to apply for necessary parts to the server and download the relevant parts only.

Through this method, users can make use of their hard drive capacity to the maximum extent and create a better environment than in the past.

To use software streaming, users must download the relevant functions again whenever they use the software. In the case of Z!Stream, it saves downloaded contents in a user's computer thereby employing the users' hard drive, not the server when the users seeks a second application. As a result, it has the same response speed as when software is being accessed through installation. However, this type of service transforms a specific part of the software in the user's computer, so creating a legal problem.

Legal analysis of software streaming & infringement of intellectual property rights

To implement software streaming, the service must be offered stably under any operating system. To this end, a virtual file system or a virtual registry is often used. By making the use of a virtual operation system, a unified address could be employed, so enabling the software to be used under any operating system. To perform such a function, however, the software must be analyzed in detail.

In the process of such analysis, a reversed analysis, an adaptation, or a violation of a technical protection step could create a legal issue. In such a case, a judgment must be made as to whether a reversed analysis, etc., would fall under the law concerning protection of computer programs. It must also be judged whether an adaptation of the original has been made or not, considering the creativity of the process of transforming it.

It is difficult to conceive that transforming software is a violation of the basic copyright. However, the act of transforming software for a business purpose without obtaining approval from a company holding copyright would seem to cause a problem.

In the act of loading a transformed file structure on the server, I believe the existing duplication, transmission, and broadcasting rights could present legal problems. In the case of transmission, particularly, the act of making it possible to transmit a transformed file is a violation of the transmission rights, so the standards of the judgment are clear. Besides the loading of the file on the server, there is a possibility of infringing the duplication rights in the user's computer.

In case of servicing software streaming, the service is offered online, placing responsibility on the online service provider.

Of course, responsibility will fall on the person or persons offering the service. However, if there is another person who may share the burden of the responsibility of the provider, it must be determined whether he or she should take responsibility or not.

In judging the infringement of intellectual property rights, if it is interpreted that such action is included in the existing scope of contracts that companies holding software copyright have with enterprises or schools, it may not cause a problem of violation.

Software licensing

In the past, to use software, enterprises and schools were required to purchase individual packages and install them, or sign a contract with a company holding the copyright for the use of certain copies. Under these circumstances, a license was granted on the premise that software would be transmitted through duplication of individual CDs and DVDs or via the network.

However, a new type of software use was developed, so causing many problems. To make things worse, those willing to offer the software streaming service provided it under existing licenses held by schools or enterprises, so avoiding making an offer of the service through a direct contract with a company holding the software copyright.

The streaming service also provided for distributing to a smaller number of simultaneous users than those using existing software under contracts concluded according to the number of computers and computer users. Accordingly, copyright holding companies, facing a cut in their revenues, are protesting strongly.

Owing to such contract problems, companies holding copyrights are expected to conclude direct contracts with those offering the software streaming service. Related to this, SOFTonNET seems to accept the conditions suggested by full copyright holding companies, paving the way for an amicable solution.

In terms of the software streaming service, the infringement of intellectual property rights is to be largely affected by the interpretation of existing licenses. However, since a "license" refers to a contract between both sides concerned new conditions should be added should a change in the basis situation occur.

As a result, those hoping to offer the software streaming service should not offer it based on the licenses held by schools or enterprises. Instead, it is desirable for them to conclude contracts with the company possessing the copyright.

In a conclusion, the most urgent task to solving the current impasse is to seek a point of compromise between the anticipated profits of existing companies holding copyrights and the consumers trying to use their software.

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