Legal? or Not?

[Marco33]

I was surfin through e-bay and had seen 2 interesting sales.

One was for a paper clip. Now this paper clip sold for $60+ dollars... Oh' as a Bonus the winning bidder recieved a copy of the SW trilogy SE.

Now, is this person playing in a gray area. Technically, he's not realy selling the bootleg trilogy... or is he.


The 2nd was the SW trilogy LD's. They sold for $150. And as a bonus you recieved the DVD captures of the LD's.

Technically, he's not making copies to sell and the new owner will own the originals so, it's ok... or is it.

hmm...

[adam]

There is no grey area at all here, both transactions are illegal.

The first deals with what is known in contract law as a peppercorn. This is where both parties use a substitute good as consideration in the transaction, when they are obviously dealing for something else. For example, "No officer I was just selling him the selophane baggy, it just happened to have marijuana inside."

Peppercorns are considered to be a means to defraud a court should the contract be challenged. When peppercorns are used as a means of bypassing laws, the transaction becomes illegal.

The second transaction, is also illegal. It doesn't matter who owns the original, neither party has a license to distibute. You can sell something which you have bought, but you can't make a copy of it and then sell that. Even if the seller spreads the transactions out and first sells the original, then later tries to sell the copy to the same user, this is still illegal. You can't "buy" a backup of something you own. Depending on which country you live in you may have a legal right to make one yourself, but you can't buy a bootleg and call it a backup.

[mysticgohan17]

For example, "No officer I was just selling him the selophane baggy, it just happened to have marijuana inside."

but what if you sold the a betamax copy of a movie and as a bonus, a SVCD DVDRip of that same film. same rule, for all the bigwigs know he could have made a svcd of that same beta and cleaned up the picture and restored the audio.

[Marco33]

I think that still qualifys as a no, he still doesn't hold the copyright to the original no matter what format it's in.

But, if these things are wrong,

How come e-bay doesn't crack down on them?


ha... I kill me.

[adam]

It does not matter, if the material is copywritten then the only license you have purchased is a user license. You can watch the movie all you want, and you can sell your movie along with the user license, but you cannot make copies for resell.

Anytime you backup a copywritten source without express permission, you are violating that copyright. There are exceptions to copyright violations, however. In the US we have a Fair Use exception which may or may not allow you to make 1 backup copy for personal use, this is still open to debate. Other countries have their own laws, but I don't believe any country anywhere has exceptions that allow you to purchase software, make a copy, and then sell that copy with or without the original. Its a violation of the copyright for obvious reasons.

When it comes to copywritten matieral, at the most, YOU can make 1 backup copy for YOURSELF. You cannot make it for someone else, and if you sell your user license for the original product, you are required to destroy the backup you made.

[adam]

How come e-bay doesn't crack down on them?

They do, but sometimes these things slip by. With so many auctions going on all the time, I'm sure its hard to keep tabs on them all. I guarantee you ebay has a lawyer who gives advice on the legality of questionable auctions, but as long as ebay's ass is covered and it doesn't damage the reputation of the site, I'm sure they don't care what gets bought and sold.

[Marco33]

They don't care as long as they get their cut.

[Karate Media]

Adam--

Now, when we had a similar thread going a couple months ago:
https://www.videohelp.com/forum/viewtopic.php?t=152132&highlight=
(I'm too lazy to look for the exact post I'm talking about), there seemed to be an agreement that, under Fair Use, one could make a backup copy of X (software, movie, etc) but if they sold the original, they HAD to give the buyer the backup as well. It was now the new owner's backup copy, and it also ensured that you didn't keep an illegal copy for yourself. In which case, the Star Wars LD guy is actually following the law...

But this may have been a comment by someone like TXPharaoh that never got disputed...

Regardless -- Obviously, Fair Use is not specific and can be interpreted by the court in any way they wish, but -- also obviously -- members of the dvdrhelp forum tend to believe that Fair Use extends to backing up copies of movies that we own. So what is the problem with the second example? You get the original LaserDisc and a DVD backup of it. If we should be allowed one backup of a movie/software/etc that we own, who says we have to make the backup ourselves?

[adam]

Well, I certainly never said that nor read it anywhere, and I don't believe it to be correct.

First off, there is no such thing as "giving" something away as a "bonus" along with the actual purchase. If the the buyer knows they are getting the item before they make the purchase, than it is considered a part of that purchase.

So with that said, it should be obvious why you can't give or sell the backup copy along with the original, you are now selling a copy without permission. You can claim that your price would be the same regardless of whether you "threw in" the backup or not, but the fact is that it is given "in consideration" for the money and thus is a part of the contract. You can't sell backups under any circumstance unless you buy a specific license to do so.

Now if we assume that under Fair Use, or comparable law in another country, we do have a legal right to make a backup copy of our legally purchased software, the only valid logic behind this is to safeguard OUR purchase. If we bought something, we should be able to take reasonable precautions against its destruction, including making a backup copy which benefits us no more than the original, but which ensures that we always have a copy kept safe. Once you sell the original and the user license, there is no longer any investment to protect. You have now transacted to sell whatever interest you still had and you have gotten your return on your investment, (resell value + enjoyment from use - retail cost= your return.) There is no longer any use for the backup and it should be destroyed.

An arguement could possibly made that you could legitimately give the backup away along with the original if the buyer never knew they were going to get it, but even then its pobably questionable. The giving of the backup copy has benefitted the seller. It has strengthened his reputation with the buyer and is considered an investment, since that buyer is now more likely to transact with the seller in the future.

[Tommyknocker]

Depending on which country you live in you may have a legal right to make one yourself, but you can't buy a bootleg and call it a backup

So if someone owns a legal copy, they cannot legally download a Kazaa copy of the same movie? Or if I buy a movie legally, can I pay someone to back it up for me, if I do not know how to copy it myself?

[Karate Media]

Adam--

I'm gonna need to see some citation on where it says that the owner has to make the backup copy him/herself. What if my CD burner is busted, so I have to go to my friend's house and have him make a backup of my paid copy of Premiere 6.5 for me? Or better yet -- does this mean that just because Joe X doesn't own a DVD burner, that he's not entitled to backup his legally purchased DVDs via his buddy's computer? (again, using the assumption that we all agree that it should be legal to backup DVDs that you legally own)

The first example in the OP -- yes, that's illegal, b/c you aren't really selling the paperclip, you're selling the bootleg. But calling the second example (the original w/ backup) illegal seems to be stretching it.

If I have made a backup copy of a movie, and then sell the original, there are only two seemingly legal recourses: Destroy my backup, or give it to the new owner. Since the new owner has every right to possess a backup of his legally purchased movie, it really seems like splitting hairs to dictate where and how he obtains that backup (and yes, I understand that much of the legal system is dedicated to splitting hairs! ).

It seems that you are saying that the new owner can only legally obtain a backup of the movie if he creates it himself...

[freak_in_cage_10k]

karate- i think the reason selling this star wars with the additional discs is considered illigal is because, even though the person owns the movie this does not give him the right to alter it in any way! buy buying the product his copyright is saying "in exchange for money, we will let you have a copy to watch only". it does not allow him to modify or alter the movie in any way, after all, the next logical step after transferring it to different media is to tweak the movie itself around, edit out scenes etc, and this does not fall under the users agreement.

he paid the money to own a copy, not to tweak around with it, i guess thats what it means!

[Karate Media]

Freak in a cage --

No, "format-shifting" is perfectly legal under Fair Use (at least how I understand it) -- this is why you can make cassette tape recordings of vinyl LP records that you own. It is why you can create MP3s from CDs that you own. One of the stated, major selling points of standalone audio CD burners is the ability to "format-shift" your old records to CD. And it's perfectly legal (right now, in the US, at least)

[adam]

I'm gonna need to see some citation on where it says that the owner has to make the backup copy him/herself. What if my CD burner is busted, so I have to go to my friend's house and have him make a backup of my paid copy of Premiere 6.5 for me?

No, that is not what I meant to imply. Assuming there is a Fair Use exception which allows one to make a backup copy of legally owned software, there would be nothing preventing you from using someone else's hardware to make the backup, or from letting your more technically inclined friend back it up for you. The problem arises when money enters the picture. You cannot hire someone to backup software to which you only own a user license, and you cannot charge money to backup something of which the owner does not own the copyright. As far as a citation on this, I'll have to get back to you on that since I don't have access to my usual legal research tools during the summer months, but the proof is really in the pudding.

Call any replication plant and ask them to make a backup copy of your SW triology and you will be lucky if they don't hang up on you. Read the warnings at the beginning of your movie, "cannot reproduce withoout express written permission." To make a copy in any way is, by the terms of the license, a violation of the material's copyright. Now, Fair Use is simply an exception to copyright law, basically giving you permission to violate copyrights in instances in which it would be unfair to punish you for doing so. Fair Use is broad and ambiguous but if there is one thing that is abundantly clear, it is that you absolutely cannot violate a copyright for financial gain. Even if your intentions are good, the replicator would be making money for violating the copyright, even if you, the owner, do have a legal right to a backup.

The first example in the OP -- yes, that's illegal, b/c you aren't really selling the paperclip, you're selling the bootleg. But calling the second example (the original w/ backup) illegal seems to be stretching it.

Not at all. If both parties are aware of a term of the contract BEFORE the deal is made, than it is considered a part of the contract. The fact that he is offering the backup in writing in exchange for money seems to me pretty blatant evidence that the backup is being sold. In contract law, there is this funny catch-all concept called "consideration." Its basically the motivation for the transaction, and in its simplest form it is party 1's consideration=product and party 2's consideration=money.

The general rule in deciding what constitutes consideration is whether or not it burdens or benefits one of the party members. Including the backup in the auction/sell clearly constitutes as consideration. It is incentive for the person to buy, they now have 2 copies instead of 1. The seller, even if he opts not to do so, can increase the price to reflect the backup and this gives him more bargaining power. The backup holds value, and he is giving it to the buyer as a part of the contract. He is clearly selling it to him even though the original constitutes the bulk of the sale.

If I have made a backup copy of a movie, and then sell the original, there are only two seemingly legal recourses: Destroy my backup, or give it to the new owner.

And there is nothing preventing you from giving it to the new owner, you just can't sell it to him. If the auction was only for the original, and the seller sends him the copy without the buyer's knowledge, that might be ok. If the seller clearly had alterior motivations for giving away the backup, ie: to secure a future purchase, than yes this would be a violation of the copyright.

[adam]

So if someone owns a legal copy, they cannot legally download a Kazaa copy of the same movie? Or if I buy a movie legally, can I pay someone to back it up for me, if I do not know how to copy it myself?

No you cannot do either. The person whom you are downloading from does not have permission to distribute the movie.

I think I covered the second scenario in my last post. If your friend is going to make the backup for you, they cannot profit from it. This is no different than trying to hire a replication plant to copy it, and they will definitely tell you that its not legal to do this.

[Tommyknocker]

Another question: When does ownership actually begin? Does it begin when I have satisfied the previous owner's criteria to relinquisn ownership? Or when I take physical possession of the item?

For example, let us say I purchase a DVD on the Internet. The receive my check, or charge my credit card, and send the DVD through the mail. While the DVD is on its way, can I rent the same movie and make a copy of it without violating any laws, or do I have to wait until it actually arrives to make my archival copy?

[adam]

Some types of transactions do require actual delivery and acceptance, but generally your ownership begins the second you have fulfilled your end of the contract. Once you have made payment, the product belongs to you, but you are confusing the license to use the disk with a license to use any disk.

When you buy a DVD, you buy THAT DVD, not just a general license to watch the movie in any form. If you want to make a backup, you must make a backup of that specific disk, because it is the only disk you own. Under no circumstances would you ever have the right to make a backup of a rental DVD, even if you owned the rights to the movie itself. The disk is owned by rental store.

[MOVIEGEEK]

What if I buy a cup of coffee at McDonalds and I spill it on my copies of SW DVD trilogy causing them to melt, can I sue McDonalds for damages?

[Karate Media]

What if I buy a cup of coffee at McDonalds and I spill it on my copies of SW DVD trilogy can I sue McDonalds for damages?

AAAAAAAAAAAARRRRRRRRRRRRGGGGGGGGGGGGGGGHHHHHHHH!



Don't make me climb through this CRT and KICK YOUR ASS!!!!!


Ahhhh...much better now


Tommyknocker--

Adam's right on the rental angle (obviously -- he's the lawyer 'round here!) -- what you're suggesting might be akin to buying a DVD, then while you're waiting for it to be delivered, going to see it at the Dollar Theatre and saying, "Let me into this movie for free 'cause I just bought it online and it's mine to see!"


Adam--

I still think the laserdisc/DVD auction is a grey area -- If I owned a LD player (which I am considering), I would've bid on that auction, and when I made a backup of the LD, it would've been on DVD. In the second auction, you are getting the movie, no "paperclip" tricks...I dunno, I think the "peppercorn" angle isn't so obvious here -- someone really would want that laserdisc, as oppossed to bidding on a paperclip...

Alright, I'm going bye-bye for awhile...Just bought 20 TDK DVD-Rs for $29.99 at Target and I've gotta try 'em out!

[Tommyknocker]

Adam's right on the rental angle (obviously -- he's the lawyer 'round here!) -- what you're suggesting might be akin to buying a DVD, then while you're waiting for it to be delivered, going to see it at the Dollar Theatre and saying, "Let me into this movie for free 'cause I just bought it online and it's mine to see!"

Where did that come from? I am willing to pay the rental store to rent their movie, I am sure they will be happy to rent it to me. And I am willing to buy the DVD legally on line, which am i sure the on line store will be happy to sell it to me. Of course, I can see how making a copy of a DVD I do not own is illegal even if the copy I do own is identical. What I do not see is how this compares to me forcing my way into a private establishment. One is violating a copyright statute, the other trespassing or gatecrashing. How do you see them as the same crime?

[Karate Media]

Chill, Tommy -- it was just a joke, it wasn't really meant as a serious analogy...you might've notice that entire post was fairly jovial in tone throughout...All I really wanted to do was lash out at moviegeek -- the rest of ya just got caught in the crossfire...

[freak_in_cage_10k]

karate- my mistake m8

[Marco33]

1st transaction.

I pay for the clip, I get the DVD's free. If the disk given for free was Jaws, it's a non issue. Those DVD's are illegal to posses in the USA so, you are breaking the law by just possesing them. That's clear.

Transaction one=Illegal in USA



2nd transaction

You buy the LD's, you recieve the Backup DVD's free. I don't see the buyer at fault here. He now owns the original & has backups for his own personal use. It's unclear that you can or can't make backups and include them in the sale as free when you sell your originals. If you give them free as a friendly jesture when it was not implied in the sale and no xtra money was given...

I can see the seller is in a gray area here.

Transaction two= ?

[ChrisX]

Both as illegal, end of the story. Full stop!!!

[kirpen]

If its legal to copy a video tape or tv show you have not bought (time shifting i think it is) why shouldnt you be able to copy a dvd you dont own? Not that it means much sesne the industry says we cant backup our own dvds anway.

[snowmoon]

I would believe that the second transaction would be legal. Assuming there is no "catch" here ie "do you *really* want the LD's or can I keep them?" type setup going on here.

Since format shift is legitimate for personal use as long as you own the original media, when you sell the original media you must either destroy the backups or give them to the new owner. I see no immediate illegal activity in the second transaction.

One thing that many people don't understand here is that you own the disc when you give the cashier money, you can do with it what you want. The copyrighted materal on the disk has restrictions by federal US law, but there is no licence agreement between anyone, at least none that would hold up in court. Only the federal copyrihgt laws prevent you from doing what you will with the contents of the disc.

This is why you can sell "coasters" that also have SWEP1 on them since you bought and payed for the disc fair and square. You cannot sell "coasters" with backup copies of SWEP1 since copyright prevents you from distribution that materal. But if you make a backup for personal use, you MUST destroy or give to the new owner your backup.

@kirpen

You can't copy materal you don't own because the copyright law says so. Theoreticly time shifting is legal because the SCOTUS has ruled that time-shifting is legal, but it's shakey if you push it since editting of commercials may make it illegal ( modification of copyrighted materal ).