DVD Back-Up Legal Info

[F1118]

Anyone know where I can get legal information on DVD Back-Ups and legal info on providing a DVD back-up business?

Thanks

[holistic]

This will start a fight.

Way I understand it : NOT LEGAL

Althought there exists a "fair use" clause, it doesn't allow for the breaking of encrypted content (CSS)

http://www.protectfairuse.org/consumers/now_playing.html

A quote from the link

The Digital Millennium Copyright Act (DMCA) passed in 1998 does not expressly prohibit the copying of digital works - only the distribution and use of tools that circumvent copy prevention technologies.

ie : DVD Decrypter and the like. WGAF.

][


edit : Lawyer speak
http://www.copyright.gov/title17/92chap1.html#107

[pacmania_2001]

http://www.doom9.org/dmca_revealed.htm
http://www.doom9.org/dmca_revisited.htm

Those explain the DMCA issue of DVD backing up.

Just remember though that it is only the US that is affected by the DMCA so other countries will have different laws in regards to DVD copying.

In Australia for example I believe the ACCC (consumer watchdog) has ruled that fair use allows for the backing up of a DVD if you legally own a copy.

Way I understand it: Legal, under most circumstances.

[F1118]

Ok check this site out .... This guy offers a backup service for DVD, Play Station Games, and XBOX games ... Do the terms of service on his website cover him and disconnect him from any legal ties?

http://www.planetxshop.com

[pacmania_2001]

I'm no legal expert but from what I have read and understand what he does is illegal (albiet a grey area).

I would also doubt that the terms of service he has on his site would stop him from being prosecuted by the copyright holders/law enforcement agencies.

If you want an in depth (and proper) legal look at the issue of DVD backing up and also that site I would PM the moderator adam. He is up with the legal situation in terms of copyright infringement.

[F1118]

From what I am reading about this it is legal to backup your original copies by fair use ... but it is illegal to use any type of decryption software by the DMCA ... In the last congress session there were two bills that were introduced about allowing the use of decryption software to regain fair use for new digital media ... So now I suppose we wait until the next congress session to see if any of the bills are going to be passed. If something is passed and united states citizens regain their fair use rights for digital media such as dvd's than I don't see why it would be illegal to provide a dvd backup copy service.

[housepig]

From what I am reading about this it is legal to backup your original copies by fair use

not really - Fair Use covers excerpting, copying or quoting limited portions, not copying the whole thing.

if you can find any citation to actual copyright law that supports making backups, please post it - I've been looking through the copyright law for weeks, and have not found anything that supports it.

there's Section 1008, but that explicitly covers audio, not video.

html version of the Copyright Act HERE

as far as what that guy is doing, his disclaimers will probably not stand up in court.... until then, he's flying below radar.

[F1118]

Ok maybe im wrong here but "FAIR USE" sounds like it covers the duplication of your original media ... I mean ... If fair use didn't cover it than why would that be used as the main defense in so many court cases? I think the big thing is that using decryption software violates the DMCA ... Doesn't it look that way to you guys?

[tgpo]

Basically in the USA it's like this.

It is perfectly legal for you to backup your DVDs. That's just find. But it is illegal for you to break the CSS encryption. It is against the law. Thus it is legal for you to backup your DVDs, but the means of doing it are illegal.

[housepig]

Ok maybe im wrong here but "FAIR USE" sounds like it covers the duplication of your original media

It does... it does NOT give you the right to duplicate the whole thing - it gives you the right to excerpt for purposes of comment, review or parody.

If fair use didn't cover it than why would that be used as the main defense in so many court cases?

what cases? off the top of my head, I can think of the Mad Magazine vs. Tin Pan Alley (one of the precedent setting cases for parody), Luther Campbell / 2Live Crew vs. Acuff/Rose Music (the "Pretty Woman" case, also parody).

do you have some citations or something more to go on? two of the problems are a) the term "Fair Use" gets bandied about rather freely, and b) there's lots of anecdotal, "oh-I-heard-about-this-guy" stories, but you can't find any details or case files on them...

[adam]

Nothing even close to copying DVDs has ever been tested under Fair Use. There is no way to know whether Fair Use would grant you an affirmative defense to copyright infringement when backing up your legally owned DVDs.

However, the DMCA is pretty clear. If you are breaking the encryption for the purposes of which they are implemented, ie: to copy the source material, then you are in violation of that law.

As of right now, it is still technically illegal to copy encrypted DVDs in America, but this would most likely change if anyone were charged. So I guess that makes us all crusaders

There are alot of congressmen and women who don't like the DMCA, or who at least want to narrow its reach. It takes forever for Congress to agree on anything, so I'm not holding my breath.

[Roundabout]

This is the legal argument being used by 321 Studios regarding their DVDXCopy software: it doesn't BREAK the encryption, it COPIES the encryption. Therefore, SO FAR, they have been able to keep their software on the market by claiming that they comply with the DMCA - since they are not breaking the CSS. If my understanding is correct (and I'm no expert, for sure) the fair use thing was settled in the case of the Sony Betamax (SONY vs. Hollywood), that was what the case was all about - fair use. AFAIK, that hasn't changed, that it is legal to back up what you legally own. The only thing that has changed is the encryption scheme used to prevent it from happening. That's what the fight is all about. The way the DMCA is now, you can't use programs like DVD Decrypter legally, because you are breaking the CSS code. At least that's how I see it. The courts, of course, may have a different opinion.

[MOVIEGEEK]

adam wrote:"So I guess that makes us all crusaders"

I'm doing my part in this struggle.

BTW..Fair Use(as ruled by the US Supreme Court:Universal vs. Sony) was intended for the taping of TV shows to be viewed at a later time(Time Shifting).You could record your DVD playing on your TV with a camcorder and that would be a legal backup.......but it would look like crap.

[adam]

The Sony case was settled under Fair Use but it was different, and its implications really would have no effect on DVD copying. You do not necessarily have a right to copy anything you own. That is the argument that seems completely logical under fair use, but as far as DVDs are concerned, like I said, this hasn't been tested yet. In the Sony case, the Sup. Ct. ruled that you have a right to time shift under Fair Use, meaning that if you are paying for a television broadcast you have the right to record it so that you can watch it at a later date, or as many times as you want.

Obviously you do not need to copy the DVD to watch it whenever you like, so the right to copy in the interest of time shifting does not apply to DVDs.

http://www.museum.tv/archives/etv/T/htmlT/timeshifting/timeshifting.htm

There is a brief description of time shifting.

[tgpo]

Then would backingup your DVDs by capturing them on your computer fall under fair use according to those terms?

[MOVIEGEEK]

Then would backingup your DVDs by capturing them on your computer fall under fair use according to those terms?

IMO(and adam would know better) you could legally capture DVD->PC and make a VCD/SVCD/DVD because you're not breaking CSS.

[Roundabout]

Adam wrote: In the Sony case, the Sup. Ct. ruled that you have a right to time shift under Fair Use, meaning that if you are paying for a television broadcast you have the right to record it so that you can watch it at a later date, or as many times as you want. <<

Adam, what if the TV broadcast you happened to be copying was a movie? So it's OK to copy a movie if it's broadcast, but not if it's on a VHS tape or a DVD?
Moviegeek, if you copy and make a DVD on your PC, you have to break CSS, UNLESS you use something like DVDXCopy. By using DVD Decrypter, you are breaking the CSS Code, as I understand it.

[holistic]

Then would backingup your DVDs by capturing them on your computer fall under fair use according to those terms?

IMO(and adam would know better) you could legally capture DVD->PC and make a VCD/SVCD/DVD because you're not breaking CSS.

semantics

You would be breaking the law. In order to make VCD/SVCD (not necessarly DVD image) you must at some stage decrypt the VOB files.

][

[Roundabout]

Holistic wrote: This will start a fight

100% Correct

[tgpo]

You would be breaking the law. In order to make VCD/SVCD (not necessarly DVD image) you must at some stage decrypt the VOB files.

BUt if you are capturing just the signal would that really be decrypting the .vob files. Wouldn't the DVD Player be doing that. You're just capturing it's output.

[Roundabout]

tgpo,
Aren't we talking about two different things? Capturing the video stream from a DVD player that has (legally) decrypted the video signal to a VCR or a video card, with degraded quality - as opposed to copying RAW data from a IDE device and then decrypting the data to make a 1:1 copy of it? Not the same thing.

[tgpo]

Yeah we are. I wasn't refering to a 1:1 copy, but just a simple capture. Would that fall under the DMCA

[flaninacupboard]

using a screen capper from somthing like powerDVD seems legitimate, as powerDVD is decrypting the disc and outputing the signal, which you're mkaing a record of. That wouldn't violate the DMCA as far as i can see, but may still be illegal.
As for captruing the output of a standalone DVD player, what about macrovision? if a disc has macro on it, you need to either hack your player or your capture card, which is defeating copy control, which is once again a violation of DMCA.

[adam]

Adam, what if the TV broadcast you happened to be copying was a movie? So it's OK to copy a movie if it's broadcast, but not if it's on a VHS tape or a DVD?

The source material doesn't matter, it can be a theatrically released movie or a soap opera. If you are paying for the broadcast, you have a right to watch it whenever you want. The right to time shift is why Tivo and the like are legal.

To others. If you are capturing your DVD through a software dvd player then it could probably be argued that you are breaking the encryption. Yes the software dvd player is just bypassing the encryption for the legal reason of decoding the source, but YOU are using that for a different reason. The DMCA really isn't very specific, so this could be a grey area. Even if you did argue your way out of the DMCA violation, there still has yet to be a ruling on whether you have a Fair Use right to copy even a DVD you legally own. So you still could be in violation of the copyright.

As for capturing VHS, the DMCA stands for the DIGITAL Millenium Copyright Act. VHS is analogue so it is not covered under this provision, but once again you do not necessarily have a legal right to copy a legally owned VHS.

[adam]

As for captruing the output of a standalone DVD player, what about macrovision? if a disc has macro on it, you need to either hack your player or your capture card, which is defeating copy control, which is once again a violation of DMCA.

Your post just slipped in there before mine. Well, like I just posted, DMCA only applies to digital mediums, not VHS, but in regards to DVDs bypassing macrovision itself has been ruled to be legal. Many older televisions are effected by the macrovision signal, so that you get color and distortion issues that you would normally get when copying, during regular playback. This is why macrovision removal devices are legal. As for DVD players which bypass macrovision, its more of a political reason why these usually only come by way of hacks and hidden menu's. There are lots of internal deals between DVD manufacturers and DVD player manufacturers. Basically, if you come out with a player that has capabilities that the DVD manufacturers don't like, then they are going to be less willing to deal with you.

Intention goes a long way in law. As stated earlier, just because you use a legal tool (software dvd player) to bypass the decryption, that doesn't necessarily cover you if your intentions were illegal, ie: infringe upon the copyright. So yes it could be argued that bypassing macrovision on a DVD violates DMCA, but if you did it on a VHS at worst you could still only be charged with violating the copyright. Pretty screwy huh?

[Roundabout]

Adam wrote: If you are paying for the broadcast

What if it's on broadcast (free network broadcast) TV? You aren't paying for that broadcast if you're picking it up with an antenna. And what about HD TV? So it's illegal to copy a digital (broadcast with an antenna) network broadcast because it's DIGITAL? If you have an HD TV tuner, you aren't allowed to timeshift because the broadcast is digital? That's the only difference here, analog vs. digital. Same source material. But, like you said, TIVO is legal, and it's digital. Lot of splitting hairs here. Should keep the lawyers in business for many years to come.

[adam]

Whoa Roundabout, now your misinterpreting what the DMCA says.

First off, yes you can legally time shift even free broadcasts. You paid for the antenna didn't you? If you are recieving the broadcast legally, then you have a right to watch it, whenever you want.

Now in regards to HD-TV or other digital broadcast, you still have a right to time-shift under Fair Use. Though it has yet to be ruled on yet, you also might have a Fair Use right to copy DVDs. The difference between these two actions is that DVDs have copyright protection, and HDTV and other digial broadcasts don't, as far as I know. The DMCA makes it illegal to bypass the protection only.

[Roundabout]

adam,
Well, like I said, I'm not a lawyer, or even an expert. But to me, time shifting=copying. The only difference is semantics, like Holistic said. You have to copy to time shift, so there is no difference. I don't want to beat this subject to death, as I'm sure it's been debated to death in other forums. It'll be up to the courts to decide if we have any rights left, not just in this arena, but in other things as well. I don't want to seem like I'm trying to be argumentative here. It's just a debate.
If we wanted to split hairs, and say that I paid for the antenna, we could also say that I paid for the electricity to run my PC, so I can do whatever I want with it.
You mentioned that DVD have copyright protection and HDTV and other digital broadcasts don't...AFAIK, everything broadcast on TV is copyrighted, even the nightly news. Maybe you meant the DVD's have Copy Protection as well as Copyright Protection, and HDTV and Digital broadcasts have no Copy Protection (i.e. CSS)?
It's an interesting discussion and likely this will go on for a long time until the courts decide what is the intent and legal definition of fair use. There is the law of unintended consequences in the case of the DMCA, no one predicted that it would proscribe so many acts we thought were legal, like making backup copies of CD's and DVD's.

[housepig]

Roundabout -

the theory re: timeshifting is that you can not control when ABC, HGTV or HBO puts a show on the air. So you have the right to copy that show, so you don't have to stay up till 4 am (or stay home from work at 2:30 pm) to see the show. (This is why the "timeshifting a rental tape" argument from a previous thread doesn't work - you control when you go in to rent a disc, so you presumably rent when you have time to watch. )

interesting sidebar to the Betamax / timeshifting case - you have the right to shift time, but there is no legal right to keep the material on that tape once you've watched it - in theory, you should tape over it once you've viewed the tape.

as far as making a vcd/svcd from your dvd, you could make the argument that you are format shifting, which under the Home Taping amendment to the Copyright law, is legal (at least for audio material - you can legally make a cassette copy of a cd, for example, for personal use in another player format).

Although to avoid breaking the DMCA, you'd have to capture your vcd analog, rather than ripping...

[housepig]

There is the law of unintended consequences in the case of the DMCA, no one predicted that it would proscribe so many acts we thought were legal, like making backup copies of CD's and DVD's.

ahhh, there's the rub - are they legal? DMCA aside, do we have the right to a backup copy, or should we just buy two copies in the first place, and leave one sealed on the shelf...

the DMCA just crimilizes the method - it says nothing about our underlying rights to the material.