Are dvd companoes infringing our rights???

[baker]

I was just pondering there at another posts and thinking that currently it is our right to copy anything we own to make a back-up for private reasons or something along those lines.

So isn't CSS and other copyright methods blocking our rights and therefore illeagel??

Baker

[Karate Media]

I addressed your idea in that other thread...and I'll clarify a little here...

In America at least, we do not have a "right," per se, to copy movies (or backup anything). It's simply an intereptation of an existing law, and an accomodation allowed (so far) by companies so that they don't piss us off so much that we'll actually stop buying their crap. Comsumers do have "rights", but they are lowercase "r" rights, not uppercase, inalienable "Rights." Lowercase rights are a lot less certain and are subject to the whims of the community-at-large and whichever court hears your case. So far, most courts have stood up for consumers, but there's nothing set in stone that says it will remain that way (ie, it ain't in the Bill of Rights)

No company is legally entitled to make copy-able content, as far as I am aware of. Sony could sell you a DVD that melts after 6 viewings. A court may decide that Sony didn't make you aware of this and broke an understanding between buyer and seller re: what was expected of the transaction. But if Sony proclaims "THIS DVD WILL MELT AFTER 6 VIEWINGS," in big letters all over the DVD case, then the court would probably side with them. Of course, courts also let people sue fast-food chains for not warning them that COFFEE IS HOT, so who the heck knows.

REMEMBER: The ONLY right you ultimately have as a comsumer is your right to a free will: The right to NOT buy these products, the right to vote with your wallet and encourage your friends to do so as well.

Ultimately, this will hurt the entertainment corps. more than anything else. They need our money to survive; us, without them, doesn't make a difference. You go learn how to play guitar and write your own songs for your friends to hear, you find ways to entertain yourself, or you put your money towards smaller labels with more respect for both the consumer and their own artists. Heck, maybe you buy a video camera and start making your own DVDs. There is a whole world outside of the multinational congloms (for now, at least)...would it really be so bad if Sony didn't exist, or if you never saw that big budget version of Lord of the Rings?

Yes, we need culture and art to survive...but is all of this big-budget entertainment really culture or art?

Whooo...anyway, let me get off my high horse...startin' to make my backend sore...I'm by no means any sort of radical, but ultimately there is a fairly simple solution to the problem. And you won't find it in a courtroom.

[WelshRarebit]

Actually, in the United States rights are not given - they are taken away. You have the right to do anything that is not prohibited by law or limited by a contract you have agreed to. That's why the First Amendment to the Constitution reads "Congress shall make no law ... abridging the freedom of speech" rather than "You have the right to free speech."

It's a subtle but extremely important distinction. For example, it's the reason that slavery was legal until the passing of the 13th amendment, which specifically prohibited it.

You have the right to make copies (that you won't be selling or giving away) of items (dvds, books, cars, etc.) as long as there is no law prohibiting it and you haven't agreed to such in a contract.

So, the owners of the companies can put in copy protection because that right has not been take away from them.

Daniel

Disclaimer: Consider this a history lesson, not legal advice.

[adam]

Just a couple things I think I need to clarify...

In America at least, we do not have a "right," per se, to copy movies (or backup anything).

Actually, we most certainly do. Fair Use is very specific. It states that in America you have a legal right to make 1 backup copy of any software you legally own. In America there is a clear legislatively imposed right to backup a DVD, or any other software for that matter.

Now there is conflict in the law in this area, which is a very common thing. The DMCA (Digital Millenium Copyright Act) was passed after Fair Use and it essentially makes it illegal to reverse engineer software. Since ripping DVDs requires circumventing CSS protection, you are technically violating the DMCA by copying a DVD, even though Fair Use says its ok. These laws create a catch-22 where you have a legal right to copy a DVD, but no legal means of doing so. The stinker is that Congress has basically admitted that they never intended for DMCA to apply to DVDs, its just sloppy bill writing. So until Congress takes it upon themselves to amend the DMCA, or until someone gets prosecuted for violating it, which is pretty unlikely, the laws probably aren't going to change anytime soon.

No company is legally entitled to make copy-able content

There you go Baker, that is the exact answer to your question. I don't know about marketing self destructing software but Karate Media hit the nail on the head. You have a legal right to copy software you buy, but that doesn't mean that the manufacturer has to ensure that the format they sell is condusive to conventional technological standards used in copying software. So the most obvious way to copy software would be with a cd/dvd burner, but that doesn't mean the company can't release their software in the form of a rom ala the DreamCast console. Of course we know that these ended up being copyable anyway, but you see my point.

It is a fact that people, if able, will copy DVDs illegally. The manufacturers have a legal right to attempt to enforce their copyright agreement through the use of anti-copy protection schemes.

Of course, courts also let people sue fast-food chains for not warning them that COFFEE IS HOT, so who the heck knows.

Granted you are jesting but still this kinda irks me. This is absolutely the most misunderstood and misquoted case, probably in the history of American jurisprudence. I absolutely guarantee that anyone who heard the actual facts of the case would wholeheartedly agree that McDonalds deserved to pay every cent of that x million dollars. Most people think this suit was just frivolous and ridiculous, it was the exact opposite. If you'd like I could give you the real story behind this case, but I guess we are kinda getting off topic.

[Karate Media]

Adam--

Far be it for me to contradict a mod, but Fair Use is not specific, at least according to what I've read. Take this letter from Condi Rice, for example:

http://fairuse.stanford.edu/rice.html

It states:
"The concept of fair use is necessarily somewhat vague when discussed in the abstract. Its application depends critically on the particular facts of the individual situation. Neither the case law nor the statutory law provides bright lines concerning which uses are fair and which are not."

Also:
http://www4.law.cornell.edu/uscode/17/107.html

Title 17, Chapter 1, Section 107 of the copyright law, this covers Fair Use.


The "rights" we enjoy as consumers under Fair Use are tenuous and vulnerable to the interpretation of the courts.

I am not sure that I am aware of a law that specifically states that a consumer is allowed the inalienable right to make a backup copy of their software. Section 107 seems to refer to more "scholarly" pursuits, but I may be overlooking something. But it seems to be that these "rights" we enjoy are more fragile than you believe.

I am not a lawyer, though, and obviously would invite any input or specific citations (not just general rulings/interpretations, but "set-in-stone" laws/bills/etc) that would put me in my place!

(and FAAAAR be it for me to contradict a mod who said I "hit the nail on the head!!" 8) )


As for the McDonalds case -- yes, there are many details that show that McDonalds was at fault. http://lawandhelp.com/q298-2.htm has some info on the case, including the fact that the final award was reduced to $480,000 upon appeal. Obviously, as you said, I was making the remark in jest -- still, this is quite a litigious nation where a number of people look far too often to the courts for all their woes...

EDIT--Oh, and as for marketing "self-destructing" DVDs -- isn't that basically what the original DivX format was? Obviously, it was a hard sell that few people fell for...

[Karate Media]

Sorry for the bump, but just wanted to throw this into the mix as well:

from:
http://www.utsystem.edu/OGC/IntellectualProperty/COPYPOL2.HTM#liability

"After all, many legal scholars, politicians, copyright owners and users and their lawyers agree that fair use is so hard to understand that it fails to provide effective guidance for the use of others' works today."


Some good info on that page, forgot to include it earlier...I swear I'll keep my mouth shut about this for at least a little while...

[adam]

Please don't get hung up on the moderator status, we are basically just cyber janitors.

Well I have read so many commentaries on how Fair Use could/should apply to DVD/software backups that I thought it was an expressly provided provision. I did some research on LexisNexis and looked at the language of the statute and the prior caselaw and you are absolutely right KarateMedia, its definitely broad and open to interpretation. I apologize for commenting on your post without looking into it further first. Your post definitely made more sense than mine.

I do think there is an arguement for Fair Use protecting backups, its just not as concrete as I implied. No I cannot provide specific on point caselaw because none exists. This doesn't really provide evidence for or against the proposition that Fair Use may protect backups, however, its just evidence that no one gets prosecuted for these types of actions, regardless of their legality.

As you noted, the actual language of the statute doesn't come close to mentioning a right to back up software, and implies that if it were protected it would have to be for educational purposes, stating that Fair Use would be a defense to copyright infringement if the actions were done for for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

However, its important to note that the Fair Use statute, section 107, is the codification of an existing judicial doctrine. Long before the statute existed courts were essentially making practical decisions regarding the "fair use" of copy protected works. In Encyclopaedia Britannica Educational Corp. v. Crooks, that court ruled that "17 USCS § 107 does not change, narrow or enlarge previous judicial doctrine of fair use, and factors mentioned in statute to be considered in determining fair use are illustrative and not exhaustive." Essentially, there are many instances in which one may be protected by Fair Use despite those areas listed above.

Furthermore, in Loew's, Inc. v Columbia Broadcasting System that court ruled that Fair Use (the actual codified statute) was specifically implemented to provide a broader scope of protection, under the existing Fair Use doctrine, in instances where infringement involved science and fine arts, but outside of these areas the "scope of fair use is narrowed but still exists." The court said that it all boils down to the nature of copyrights. "All persons may make fair use of copyrighted work."

Finally, in Time, Inc. v Bernard Geis Associates , that court ruled that Fair Use is meant to balance the interests of the copyright holder and the public, and that it grants a presupposition of good faith and fair dealing on the defendant and that Fair Use's protection is broad when the actions do not result in any actual or monetary damages to the copyright holder. I think there is room for argument, but I it seems it does not hurt the copyright holder for a purchaser of a DVD to make a backup copy in the event that the original has been damaged.

I genuinely think Fair Use could be used as a valid defense to copyright infringement if you were prosecuted for backing up a DVD you lawfully owned. Like you said, the law is very ambiguous though. In reality, its really more of an issue for public debate than for litigation. I doubt this issue will ever reach the courts.

As far as the McDonald's case is concerned, that link does sum it up pretty nicely but there is one bit of information that I think seals the deal. The whole reason McDonald's served their coffee so hot was because they discovered that if you scald stale coffee and pour it in with freshly brewed coffee, it removes the bitter taste that stale coffee has. They were trying to save money by recycling coffee, even though they were warned repeatedly that it presented a severe safety risk to customers, and even though several people had in fact been seriously injured in the past.

The case sounds frivolous because she was the one that spilled the coffee in her lap, and now she is complaining that it was too hot. But the coffee was so hot that it would have seriuosly injured her if she had just drunk the coffee.

Anyway, DVDJOHN RULES!

[Xesdeeni]

I have to pipe up here to say that I worked for McDonald's circa 1983, and at that time there was a big prominent sign on our drive-thru that said "Caution: Coffee is hot." I don't know for sure about any other McDonald's, but since almost everything we did was "by the book," I have to believe most McDonald's had the same sign in the same place. Nevertheless, I have always been amazed that this case went anywhere when this warning was in plain view.

As for making one backup of a product...I believe this is a myth caused by a clause to that effect in most shrink-wrap licenses. I have never heard (but I'll admit to not having done my research) of a case where someone was told that one copy was legal, but two copies were not.

Xesdeeni

[adam]

The topic of this thread changed so drastically, that I decided to split it. All of the coffee related posts, as best as I could group them, are now in the off topic forum. The remaining posts don't necessarily flow correctly, but the jist is there.