Catch 22?

[happyguy49]

for any lawyerly inclined digital video people out there, here is a question for you.
isnt backing up DVDs an apparent catch-22 type situation? it seems to me that it is legal to make a backup copy of a DVD you own (under 'fair use' or somesuch), but to do so you have to defeat the copy protection; which is illegal (DCMA i think??).
is there a judicial resolution of this issue that anyone is aware of? or is it too new? just wondering..

[adam]

This has been discussed a great deal on these forums.

I'm assuming you are talking about US law, if its any other than you'd have to look up their laws. But under the US, there is no catch-22 at all. First off, the last provision of the DMCA specifically states that it does not remove any rights granted under any other provision of title 17. Therefore the DMCA effectively defers to Fair Use. IF what you are doing is Fair Use, or any other permissible act, then the DMCA cannot deprive you of that right. So for example, you could bypass CSS encryption keys to copy a scene for the Fair Use purpose of parody.

But contrary to what so many people keep claiming on all of these anti RIAA, anti MPAA, etc... sites, Fair Use really does not grant you any backup rights at all. At least none that have really been adjudicated or codified into law. About the only "backup" that has been ruled Fair Use is timeshifting (recording on air broadcasts for a later viewing). All other copying rights under Fair Use only apply to partial copying. Quite simply, Fair Use is case driven and there are no cases on this, so therefore the provision is completely inapplicable to DVD backups. Don't get me wrong, I think a court could easily rule that archiving your...anything.... could qualify as Fair Use. This is just not the type of issue that is easy to bring to the court's attention since people don't get sued for this very private act. How would you catch them, and what would be the point of suing anyway? This is something that will have to be handled by the legislature...eventually.

All of our other "backup" rights come under express exceptions of copyright law.

108- grants libraries certain archival rights.

117- allows for copying of computer software under certain circumstances (ie: essential for utilization of software in conjunction with a machine.)
and no...DVDs don't qualify as computer software...there is a case on this.

1008 grants you the right to backup music recordings (CDs, cassettes, etc...) but not anything containing video.

That's simply it. We don't have any law on DVD or any other kind of video backup above and beyond what time shifting allows. Therefore, the general prohibition against unauthorized copying applies under the grant of exclusive rights to the copyright holder.

But as always, feel free to discuss DVD backups on this site. It is legal in some countries and we feel it will eventually be made legal in the US.