Questions on Legality

[mbaker_jr]

As I understand the law, it is only permissable to make one copy of a copyrighted DVD that you own for your own personal use (and this is a grey area as it is illegal under the DMCA to break the CSS that encrypts the original disc).

If you sell the original then under law you must destroy the copy. (Please correct me if I am wrong on this.)

Since I love to think about loopholes and other such exceptions to the law, I would like to present you with a "what if" style question:


Here are the scenarios: Is your backup still legal if...

You lose the original?

The original becomes damaged through normal use and is unplayable?

The original is stolen?

The original is destroyed in a fire?

The original is stolen or destroyed by a fire and you are reimbursed by your insurance company?


Thanks in advance for your answers!

[lostbee]

Erm thats why we make "backups" of our dvd's in case the origional suffers some horrific accident involving fire or theft etc
We are backing up the origional copy!! thats why we make back ups

[housepig]

As I understand the law,

1. it is only permissable to make one copy of a copyrighted DVD that you own for your own personal use (and this is a grey area as it is illegal under the DMCA to break the CSS that encrypts the original disc).

2. If you sell the original then under law you must destroy the copy. (Please correct me if I am wrong on this.)

Since I love to think about loopholes and other such exceptions to the law, I would like to present you with a "what if" style question:

Here are the scenarios: Is your backup still legal if...
3. You lose the original?
4. The original becomes damaged through normal use and is unplayable?
5. The original is stolen?
6. The original is destroyed in a fire?
7. The original is stolen or destroyed by a fire and you are reimbursed by your insurance company?

1. not true. but for the sake of this argument, let's say it is, and that ownership includes a right to a single backup. with that in mind, legally:
2. correct.
3. I wouldn't think so - how would you prove ownership?
4. yes - you still own it.
5. see #3.
6. see #3.
7. see #3, unless you used the reimbursement money to buy another legal copy.

let the arguments commence. anyone who picks a bone with my answers without reading the italicized and bold portions of #1 will be ignored.

[lostbee]

I agree with ya mate sorry no argument from me

[mbaker_jr]

[quote="housepig"]

Is your backup still legal if...
3. You lose the original?
4. The original becomes damaged through normal use and is unplayable?

3. I wouldn't think so - how would you prove ownership?
4. yes - you still own it.
quote]

So even if the original is useless in terms of playability, it still has value in terms of proof of legal ownership of the original disc.

And for the originals made useless by fire; say you could still identify the original but it was melted and unplayable. Since proof of ownership of the original seems to be what's important, does this mean that you would have to keep the melted mess on hand if you wanted your backups to be legal?

Would the little "Proof of Purchase" tab suffice to prove ownership?

If so, would this work for the lost/stolen copies as well?

[babyboo]

I know that it is far fetched, but if my DVD collection went up in flames, chances are that my backups went up as well, along with the rest of my house. The least of my concerns would be replacing them or the legailty surrounding a backup if indeed it was stored off site. I know...you are just trying to come up with all possible reasons why the original would no longer be available...personally I would nix the fire option

[Capmaster]

Interesting thread. Would documented proof of the fire give a reasonable argument that you had the original, but it was destroyed? Probably not. You could say you owned anything that way.

I have seen limited fires that didn''t burn down the whole house - my uncle for one. He lost everything in the basement and there was some minor smoke damage to the furniture, paint, drapes, etc. It's possible you could lose your originals and nothing else.

If I had owned the originals, lost them in a fire, and only had the backups left, would I destroy them? Yeah ....right.

[housepig]

So even if the original is useless in terms of playability, it still has value in terms of proof of legal ownership of the original disc.

And for the originals made useless by fire; say you could still identify the original but it was melted and unplayable. Since proof of ownership of the original seems to be what's important, does this mean that you would have to keep the melted mess on hand if you wanted your backups to be legal?

yes. the crux of the idea of "backing up" your discs is that if the original is damaged, you can still watch the backup. but you still have to own the original (even in an unplayable state) for that to be a "backup" copy and not your only copy.

Would the little "Proof of Purchase" tab suffice to prove ownership?

If so, would this work for the lost/stolen copies as well?

since most of my discs that have "proof of purchase" tabs have about 6 of them for each disc, I wouldn't think that would suffice. And how would you end up with the p.o.p. tabs if the originals were lost, stolen or melted?

[indolikaa]

As I understand the law,

1. it is only permissable to make one copy of a copyrighted DVD that you own for your own personal use (and this is a grey area as it is illegal under the DMCA to break the CSS that encrypts the original disc).

1. not true.

housepig,

If you don't mind, please explain. And feel free to PM if you want to keep this answer separate from the discussion...

Thanks.

[adam]

As Housepig noted, there really isn't a defined right to backup a DVD. The arguement is that it would qualify as a Fair Use right. But since Fair Use is a defense to copyright infringement, someone would have to be sued and raise that defense before we got a ruling one way or another. The argument has been raised to a certain extent before but none of the rulings have been on point. No court anywhere has ever decided this issue. To backup a DVD is literally a violation of copyright, even if it does qualify under Fair Use. So until the exception is recognized, backing up a DVD is technically illegal.

Of course I'm referring to backing up a DVD to protect your investment in the original. You can still copy portions of DVDs for other Fair Use purposes (parody, education, etc...) That alone makes sites like this legal and purposeful.

But now for the sake of argument, lets change the facts. Under US copyright law (17 USCS section 117) you are allowed to make a single backup copy of any pc software you legally own. No, DVDs don't qualify as pc software btw even though they can be played on a pc.

The statute states that you are allowed to keep the archive copy until, "continued possession of the computer program (original) should cease to be rightful." So as long as you have possession of the progam, even if its nothing more than the bits and pieces of the disk that survived a fire, then you have a right to keep and use the backup. If you totally lose the original then technically you should destroy the backup even if you do have an actual proof of purchase. It seems actual possession of the original is a requirement. If one day we get a ruling that DVD backup qualifies as a Fair Use right, then the requirements would most likely be pretty similar to computer software, even though the rights come from completely different rationales. But of course, we'll have to wait to know for sure.

[indolikaa]

So 'Fair Use' would have to be litigated in regards to DMCA...

The implications are enormous, to say the least.

Thanks.

[adam]

So 'Fair Use' would have to be litigated in regards to DMCA...

The implications are enormous, to say the least.

Thanks.

In effect that is probably what would happen, but not necessarily. The DMCA doesn't apply to Fair Use rights. It has a specific exception for it. So if you wanted to sample a scene from a DVD for educational purposes, you could legally decrypt the DVD to do so. So the only question is whether DVD copying is Fair Use or not. If so, then the practice is exempt from both copyright infringment as well as the DMCA. Its possible that a copyright infringement suit could be brought against someone for backing up their DVD, and the DMCA not even be raised. But of course this would not likely happen. Insofar as it applies to DVDs, the DMCA just gives the copyright holder additional ammo. They can sue for greater damages and potentially impose stricter criminal sanctions. You know the MPAA isn't going to pass that up.

But really the only question is whether backing up qualifies as a Fair Use right. The DMCA just raises the penalty IF it is ruled to be infringement.

Everyone always argues "dvd backup is a fair use right!" and I agree, but it shouldn't even have to be. What is the logic for allowing backups of computer software but not DVDs or audio cds? I could name a few sure, but we all know the real reason...lobbying and $$$! If the computer software industry had such a centralized protection agency like the MPAA or RIAA I can guarantee you section 117 never would have been enacted.

[Supreme2k]

Most of the concerns are (or should be) moot. The purpose of the backup is to use the backup rather than wear down the original, just as a store gives you a copy of the receipt rather than the "master copy".

When you make a backup, it basically is "tainted". You keep the original safely put away so that you have a copy "untainted" should the backup be destroyed, rather than making a backup of a backup of a backup...

[indolikaa]

I eliminate the problem entirely.

If I buy a DVD or CD and I end up liking it, I buy a second copy and store in a very safe place. And no, my lips are not permanently attached to Jack Valenti's ass, although I'd sure love to put my foot there...

Of course not everybody can afford this approach. Hence, Fair Use. I understand it, I support it, and I applaud those who defend it. Don't get me wrong, I am not on the RIAAs and MPAAs side on this one. IMAO, they brought on the current situation themselves and they are now reaping the disaster they sowed.

I didn't have the same ability when I was younger. So I have a huge collection of music that you cannot find for sale anymore. Even on eBay, in some cases. If the record companies don't want to keep material in print, what am I supposed to do? Vinyl DOES deteriorate over time, no matter how well you keep the LP stored.

Just some idle thoughts...

[housepig]

adam, as usual, has added his expertise and explained it much more eloquently than I could have.

and thanks for actually making a citation to butress your argument! I'll add that to my set of links.. I knew that it was custom to allow the making of backups of software in the license agreements, but I didn't realize it had been codified in law..

man, discussing law after watching "Anatomy of a Murder" while listening to the Butthole Surfer's "U.S.S.A." is making my head hurt...

[spiritraveller]

1. not true. but for the sake of this argument, let's say it is, and that ownership includes a right to a single backup. with that in mind, legally:
2. correct.
3. I wouldn't think so - how would you prove ownership?

Keep in mind that physical evidence is not the only kind of evidence there is.

Testimony is also a form of evidence. If you testified to having bought the original DVD and to how you lost it, that would also be evidence...

If there was no evidence to contradict your testimony, that would be proof as a matter of law. In other words, the court could not hold otherwise.

That still begs the question as to HOW you lost the DVD.

If it was completely destroyed, it ought to be legal to retain your backup copy because it is merely a replacement of the original that you have a right to...

But what if it was stolen? Can someone steal your right to have a copy? If someone else is enjoying the original DVD, do you no longer have a right to retain your backup copy?

After all, he stole it from you, not the movie studio... so you are the one who should be deprived of it right?

Of course, none of these questions are likely to ever be answered unless the MPAA starts invading people's homes and analyzing their DVD collections for potential lawsuits.

spiritraveller

BTW, the software industry does have a protection agency that goes around enforcing their rights, and suing people for illegally copying their software. It's called the BSA, which stands for Business Software Alliance.

[Capmaster]

man, discussing law after watching "Anatomy of a Murder" while listening to the Butthole Surfer's "U.S.S.A." is making my head hurt...

Usually about 30 seconds of U.S.S.A. is enough for me to feel pain. For a while I had a desktop shortcut with a link to a CD site that has snippets of songs you can sample on your PC. I kept the link for a while as an example of the worst song I've ever heard in my life It makes my ball skin crawl even faster than Shirley Temple singing "Good Ship Lollipop" Only a brave man can listen to the whole song Everyone has different taste and more power to you if you like it

This whole discussion about keeping residue of the original opens up another area as well ......residue forgery. Scenario: I take my propane torch and completely immolate a waste commercial DVD, like a "best of" trailer CD. Then I rent LOTR, use DVDShrink, and have a good copy. Now if anyone asks if I'm the legal owner I hand them an envelope of the "original" disc and claim it was burned in a fire. Could they prove to a court that the pile of ashes isn't LOTR?

Of course, none of these questions are likely to ever be answered unless the MPAA starts invading people's homes and analyzing their DVD collections for potential lawsuits.

I welcome any attempt. So does my dog

[jimmalenko]

Proof of purchase/ownership of the original is easy - keep the receipt.

[housepig]

Proof of purchase/ownership of the original is easy - keep the receipt.

.... make a backup, sell the original for cash.

reciept proves that you bought it. not that you own it.

if "I owned it at one time" was a legal out, then keeping backups after you sold the disc would be legal as well....

and my friend just gave me about a dozen discs (including a 6-disc Herzog/Kinski box set, hot damn) - I have reciepts for none of them, they were gifts.

[macleod]

I'd like to add my 2 cents (not an answer, but a question). I have read and believe that I understand the (il)legalities of doing backups. I do home movie VHS backups for customers, but through the process of learning, know of the other ways to back stuff up. Anyway, the question (and I hope I can explain it well enough) is that the MPAA/RIAA (whatever) says that you do not own the music/video, merely that you have a license to view/listen to it. So does that mean:

1) I have a record of a Metallica album and I want the tape or CD, I should be required to purchase the tape or CD of it since record players are all but gone in today's world? Based on some interpretations I have made, I should be able to take the album to my local best buy and say that I want a tape or CD of it since I have already purchased the license to listen to it? I actually own the albums, tapes, AND CD of various music.

2) I have a VHS tape of <whatever>, and I only now have a DVD player. I should now be able to go to best buy and 1:1 trade the tape for the DVD. Again, because I already own the license

3) My CD gets scratched. I have a license to listen to the music, I should be able to trade the scratched one in for a new CD.

From a reading, I was told that I dont own the media, but rather the ability to listen to it. Shouldnt someone provide the method for me to listen to the music/watch the movie? (a little far fetched, I admit).

The way I look at it, the rules that these groups have imposed are not fair (which I am sure is echoed by a lot of members here). If these groups said that they would allow me to take back my bad media (since I own the license to listen to it) and return it for the same thing, I believe that the majority of people would consider that fair. I just get confused (not really, I say confused to make a point, albiet bad ones) when these groups whine about unfair backing up and that it is a license/royalty/whatever, howevever it appears that they are in effect "saying" that license and media are the same.

This is what I have been thinking. I probably didnt go far enough into what I really mean and hope that everyone gets the jist of it. If there is a better way to explain it or a way to make the current situation make better sense, I am all ears.

[jimmalenko]

disclaimer: All sorts of hypotheticals could be created to pick shit at someone's argument or point of view if we really tried hard enough.

Proof of purchase/ownership of the original is easy - keep the receipt.

.... make a backup, sell the original for cash.

reciept proves that you bought it. not that you own it.

if "I owned it at one time" was a legal out, then keeping backups after you sold the disc would be legal as well....

and my friend just gave me about a dozen discs (including a 6-disc Herzog/Kinski box set, hot damn) - I have reciepts for none of them, they were gifts.

You don't legally own gifts.

receipt proves that you purchased the DVD, therefore you have rights under Fair Use. If you sell it and keep the receipt, you have no rights because you do not own it at the present time.

According to you, there is no way to distinctly prove ownership of the DVD. Receipt is good enough proof of purchase to get a refund at almost all stores, so I'll stick with that.

[indolikaa]

3) My CD gets scratched. I have a license to listen to the music, I should be able to trade the scratched one in for a new CD.

Great argument.

From the consumer's point of view, hey, these kind of things happen. From the label's point, take better care of your disc and you won't scratch it in the first place.

I've had scratched CD-ROMs replaced (sometimes free of charge) by people like Sierra and Maxis. But I've never even tried it with any record company...

[jimmalenko]

3) My CD gets scratched. I have a license to listen to the music, I should be able to trade the scratched one in for a new CD.

Great argument.

From the consumer's point of view, hey, these kind of things happen. From the label's point, take better care of your disc and you won't scratch it in the first place.

I've had scratched CD-ROMs replaced (sometimes free of charge) by people like Sierra and Maxis. But I've never even tried it with any record company...

I guess it is probably implied by the record companies that "normal wear and tear" is to be expected and won't be replaceable. I know most DVDRs that come in jewel cases mention this.

a pointless yet relevant anecdote:
In Australia we have a discount retailer called K-Mart, probably similar to Walmart or something like that judging by the way US patrons talk about it. They were quite happy to replace any CDs that were "scratched upon purchase". That is, when you received the CD, it was already scratched. It was pretty much your word against theirs, but I knew one of the staff, and he was only too happy to swap a couple of CDs I had purchased there that I accidently scratched within the first few days.

[macleod]

I guess it is probably implied by the record companies that "normal wear and tear" is to be expected and won't be replaceable. I know most DVDRs that come in jewel cases mention this.

See, thats what I am getting at. The record company or the groups shouldnt care that the CD/DVD got scratched, is outdated type media, etc. I own the license to listen view the material. Its not what the media is, is what ON the media. That is the part that I have a big problem with. As far as taking the thing back and "negotiating" with a company. It should be that way at all. There should be a "old media return" section.

[jimmalenko]

See, thats what I am getting at. The record company or the groups shouldnt care that the CD/DVD got scratched, is outdated type media, etc. I own the license to listen view the material. Its not what the media is, is what ON the media. That is the part that I have a big problem with. As far as taking the thing back and "negotiating" with a company. It should be that way at all. There should be a "old media return" section.

I agree with the point you are making.

As with all businesses, I guess it all comes down to $$$. Just imagine the flood of bad audio tapes with clicks and pops if they were to replace "redundant" media. I think they're copping enough losses with piracy to ever consider being so generous.

If you were selling an item commercially, and then the media it was created on became redundant, would you replace said item with the same product on the current media of choice or would you offer to $ell it to them so you made a profit ? I would sell it

[Capmaster]

In Australia we have a discount retailer called K-Mart, probably similar to Walmart or something like that judging by the way US patrons talk about it.

Funny, we have a K-Mart here too
http://www.kmartcorp.com/corp/story/general/kmart_glance.stm

[jimmalenko]

In Australia we have a discount retailer called K-Mart, probably similar to Walmart or something like that judging by the way US patrons talk about it.

Funny, we have a K-Mart here too
http://www.kmartcorp.com/corp/story/general/kmart_glance.stm

I've never been overseas !!!

Better to be safe I guess.

[kissvid]

Hello all,

This is more of a statement....I personally think that all this talk about what's right and wrong is just that the movie companies and record companies want more and more money. I understand copywright law and all that....but look at it this way. Years ago when video was introduced people had huie video library's and still do. If we didnt buy a tape we woud tape the movie off HBO. Before that when a friend bought an album you would say can you make me a tape of it. The fact is that the movie and record companies are making so much money that they just want more. Copying has always been going on and always will. Example of how much money is being saved and made....Think about it. The record industry...can you imagine the cost of making a vinyl albumn. The jacket...the artwork etc...also try lifting 50 albumns...do you know how much money is being saved just on shipping and production alone. If we can get media for .10 a disc imagine what they pay and as for shipping weigh 50 albumn versus 50 CD's. Same with the movie industry. If we can get media and cases so cheap imagine what they pay. AGain I respect copyright laws but when I her them cry that they are losing money i'm like..come on already. Enjoy what you have. That was just my 2 cents. Thank you all.

Marc

[Capmaster]

In Australia we have a discount retailer called K-Mart, probably similar to Walmart or something like that judging by the way US patrons talk about it.

Funny, we have a K-Mart here too
http://www.kmartcorp.com/corp/story/general/kmart_glance.stm

I've never been overseas !!!

Better to be safe I guess.

It's obvious it's a different store since our K-Mart makes no mention of any stores in Oz. I wonder if you guys'll be getting a "Walmart" there too? :P

[petar]

I have a question regarding this whole debate whether backups are legal.

Does anyone know if there is actually a country where there is a law that specifically states that I cannot make a backup of a DVD that contains copyrighted material (maybe not with these exact words, but something that without any doubt means what I mentioned)?

The reason I ask is because this is unacceptable in a democracy. The studios may put a copyright notice stating "no copying" as much as they want but the constitution (at least in my country) gives me this freedom. Nobody has the right to tell me what I do with my own stuff in the privacy of my home (as long as I've purchased "my own stuff" legally, of course). Now if I take that backup outside my home (physically or electronically) that's a different matter.

Anyone knows if the laws are that specific (i.e. you can't make a backup, period)?