A few questions, technical and ethical...

[dmonsoon]

I really enjoy this site and have been using it off and on for over a year now. I've got a couple of questions you guys may be able to help me with.

My first question is technical. I have many old tv eps in various formats (mainly divx) that are cluttering my harddrive. Since I just got a new DVD burner (Sony DRU-500A) I was really hoping I could move them onto DVD with as many eps as possible per DVD (quality isn't all that important for these eps) so that I'll still be able to play them on my standalone player. So I was wondering whether or not it is possible to burn VCD files to a DVD or if there was a better way of fitting a lot of shows onto as few discs as possible.

My second question is ethical. I have 100+ DVDs, purchased over the last couple of years. I believe it is legal to make back-ups of DVDs for private use. I also know it is illegal to sell copies of DVDs as bootlegs. What I'm not sure about is whether there is anything wrong with selling the originals and keeping the backups. Does a person have an ethical duty to destroy a backup when selling an original? Is it just as bad to sell the original as to sell a bootleg? I'm not talking about making a dozen copies of each movie to give to friends or anything, just for personal use... (ps I don't feel bad about the tv eps b/c it's basically like taping shows off of tv anyway and the quality is mainly sub-vhs...)

[Craig Tucker]

How to author VCD mpeg1 for burning to DVD

http://www.vcdhelp.com/vcddvdr.htm

Not sure about the ethical question, but I would of thought you would have to have in your posession the original DVD, to justify owning a backup copy.

[Nelson37]

Yes, VCD on DVD is possible, I believe there are several Guides for this. I don't yet have a DVD burner so I haven't tried this yet.

If you sell the original you have transfered the rights to make a backup and would then be in violation of copyright law by keeping the backup. Do you hear the knocking on your door yet?

One alternative would be to literally sell the backup DVD as coasters, with a specific instruction not to use them in a DVD player as then the new user would be violating the law. Since you have sold them as coasters and not as DVD-playable disks you have shown no intent to violate the law. Would make an interesting legal argument. You might even argue that since they didn't work in your player you assumed them to have value as coasters only, that shiny look is worth 10 bucks, isn't it?

[dmonsoon]

Thanks you guys. That's about what I thought.

[Tommyknocker]

Nelson37 wrote:

One alternative would be to literally sell the backup DVD as coasters, with a specific instruction not to use them in a DVD player as then the new user would be violating the law. Since you have sold them as coasters and not as DVD-playable disks you have shown no intent to violate the law. Would make an interesting legal argument. You might even argue that since they didn't work in your player you assumed them to have value as coasters only, that shiny look is worth 10 bucks, isn't it?

Ohhh Nelson37:
An interesting legal argument was the funeral home employer who was ticketed for using the car pool lane because he was the only occupant. He reasoning was since the van he was driving had cadavers in it, he was not the only occupant.

But do you really believe anyone would believe a VCD bootlegger did not not know he was selling copies? Let us see: He thought he was selling a 40¢ bad disk for $4.00 because he thought it was no longer any good.

Dmonsoon, if you subscribe to Nelson37's logic, you will certainly end up going to the "joint"

[tgpo]

Yeah I sold the killer the gun, but I didn't sell it as a weapon...No! I sold it to him as a mantle piece for display. The fact he used it as a weapon is beyond my control.

[Nelson37]

I wasn't seriously suggesting that he try it but -

Argument for the funeral director - Ships and planes listing passengers will include cadavers on the list, the expression " # of souls on board" is used to distinguish the two. If law reads "more than one person in the vehicle", he may have a valid legal argument.

They must prove "intent" to break the law.

For instance, I often sell used computers and/or hard drives which may or may not have licensed software on them. Unless I have specific knowledge that said licensed software is in use on another machine, I am under no obligation to remove it from the drive. I specifically state that what I am selling is the drive and/or computer, unless I have the manuals and disks (rare). The buyer has the responsibility to remove any software that he/she learns is in violation of the license agreement, but the main point is that I have not sold them the software on the machine, but the machine itself, and specifically informed the buyer of this fact.

It is not necessary that the court believe you are not selling $10.00 coasters, it IS necessary that they PROVE that you had the intent to do otherwise. If you could state, and even better demonstrate, that a disk did not play in a player you own, you could reasonably assume that there was no content on the disk and sell them as coasters or art objects and charge whatever you want. Now, if the disk is labeled or stated to contain a video, or this impression is conveyed, you're screwed.

When I was in college, I made a career out of getting improperly worded questions credited to the entire class on midterms and finals - over 100 of them. My favorite was " Your boss has asked you about the formula for Economic Order Quantity, could you explain it to her?" My answer was "Yes", and I successfully contended that "No" must also be considered a possible correct answer.

While I have not gotten a legal opinion on the disk issue, I have been informed that my policy on the used computers is valid and within the law.

[edsmith77]

Nelson,
When it come to legal arugments, clear thoughts usually win out. However, for us mortals, "talk is cheap, unless you are talking to a lawyer."

How about a few words for commercial outfits that sell OEM shrink wrapped software without a system.

[snowmoon]

Your logic is what get people into trouble. Intent need not be proven in many cases. "Persons" is a clearly defined set of legal rules set down over the past two hundred years and I doubt a cadaver counts, and neither would a pergnant woman. Law are writtin upon a basis of understanding of past cases and laws. Intent will often be a deciding factor in sentancing or severity of the "crime", but intent or not if I run over someone in my car that is still a criminal offense. You can argue these things before a judge if you want, but don't be suprised if he comes down hard on you anyways.

With the PC's it could be argued easly that since you purchaced the computer from someone you are now legally responsable for the licencing, even if you don't turn on the PC. This is even more exacerbated by the fact that you are a buisness. Do you think the BSA ans DOJ care if the companies intended for their employees to install pirate software? They can get in tourble if they don't take percautions to prevent it from happening.

With the DVD's it's even easier. Since it's a medium designed for video and your price point shows that you think it's more valuable the it would be an easy conclusion that your intent was to sell videos. Even if that doesn't stick, reproduction for personal gain in any capacity can get you nailed even if you don't profit from the transaction. If I record disney films onto 100 blank VHS tapes and sell them as blanks that's still illegal even though I sold them as blanks.

You logic is the same as the people not paying taxes becuase their paycheck says wages and the 1099 says income. It doesn't work that way. The law generally work in a way where if it acts like a duck and quacks like a duck it's a duck. If it looks like a copyright volation and acts like a copyright violation it's a copyright violation.

Another thing for non-laywers to understand is that non every law makes sense to us. Don't fool yourself, many times laywers cannot even make sense of some of the laws and they have had years of experience.

[Craig Tucker]

When I was in college, I made a career out of getting improperly worded questions credited to the entire class on midterms and finals - over 100 of them. My favorite was " Your boss has asked you about the formula for Economic Order Quantity, could you explain it to her?" My answer was "Yes", and I successfully contended that "No" must also be considered a possible correct answer.

Good answer, and totally valid. I would not have had the balls to actually answer this way on an exam though. Well, not unless I didn't know the answer.

You actually answered the question yes or no on the exam, and got credit for the answer ?

[adam]

Well I don't get to criminal law til next semester so I won't comment on that aspect, but Nelson you could still be held liable for tort. In other words, you may be able to avoid actually breaking any law but you can still be forced to pay money damages to whoever owns that licence. Even if you don't have the intent to violate the licence agreement you can still be found negligent if it can be shown that you "knew or should have known" that the hardware you sold had licenced software on it.

With that said, these things rarely happen unless you are operating on a very large scale, but it does make for an interesting thread.

[Nelson37]

Yes, I answered the test question that way and yes, I got credit for it. If it had asked "what is the formula?", that would be a different case, and in fact, next semester, it was changed.

The used computers I sell are typically obtained as salvage, my only obligation is to determine to a reasonable degree that no licensed software installed on it has been re-installed elsewhere. Without specific knowledge that a given program is either pirated or re-used, and as long as I convey to the buyer that no such license is included in the purchase, I am within the law. What makes the case is that it is not reasonable for me to search out every file on the machine and determine its legality. This is on the advice of 3 different lawyers, obtained informally, and it is critical how I describe what EXACTLY I am selling.

On persons - I have specific knowledge that this term is in fact used by air carriers to refer to cadavers, and in the case of pregnant women several cases have determined that the unborn fetus does constitute a "person" in legal terms, although similar cases have been decided the other way.

As for intent - if you run someone over and it is proven that was your intent, the crime is murder. If it was not your intent, then it is at worst manslaughter, and if an unforseeable accident, may not be a criminal act at all.

The law is a moving, changing thing which in many cases hinges on "what a reasonable person would infer". How many CD's do you see dangling from car mirrors, their only purpose being for decoration? OK, maybe at $10 bucks it wouldn't fly, but how about $5? or $3.50? As with the test questions, my purpose was not to get away with something (I knew the answers) but to force them to express themselves more clearly. If there is room for argument, there is room for error.

BTW, anybody at Ohio U. say hello to Dr Nickerson, he was the only prof in 2 years I never beat. Came close once.

[snowmoon]

Their is room for error everywhere, just look at the US Supreme Court

But to push the envelope of legal doctorine is putting yourself in harms way. In the US it is extremley costly to prove ones innocence. With or without intent, without money to burn it's impossible to get any sort of justice let alome change out of the system.

It's a great discussion non the less, but I try my hardest to steer clear of ambiguities in the law. It's not worth the tens of thousands of dollars it would take to argue the finer points of a "spiritual being" in front of a judge.

[Nelson37]

Adam, you are exactly right, the key is "knew or should have known". As long as I can reasonably assume all is legal, I do not have to specifically determine that each and every software is in fact, legal, because such effort would not be reasonable or even possible in some cases. Let's say they have Quickbooks installed but it's not on the menu or desktop, or even if the files have been deleted but are recoverable. It is not reasonable for me to do a byte by byte search of the hard drive.

Some might argue "format the hard drive" but that would eliminate installed drivers, among other things, which would substantially reduce the value of the machine. Also, if I install any version of Windows, I must sell a full version since I have deleted the original, which I can reasonably assume was in fact legal.

The way the lawyer explained it to me was this - say you buy a car with 5 lbs of pot in the back seat, it would be difficult to argue you were unaware of its presence, though you could contend you believed it to be grass clippings. If the pot was hidden inside a body panel of the car, it is not reasonable to expect you to disasssemble the car to determine there is no illegal substance concealed therein, unless you have some specific knowledge that such might be the case.

Now, while I am aware that many people pirate software, very few if any of my customers specifically admit to this. Since in most cases I am the one who installs software on the replacement machines, I can reasonably assume (a key phrase) that any software present on the old one and not re-installed on the replacement is still validly licensed on the old one, even in the absence of original disks, especially as much pre-installed software does not come with disks, anyway.

It's not a guaranteed thing, but careful adherence to some guidelines will most likely keep me out of trouble.

[Poplar]

If water is too clear, no fish can live in it. If a Saint is too observant, no one will follow him. If law is carried out to each and every letter, this forum should be banned

[CauCauCau]

As far as the law is concerned, you should dispose of your backups or give them to the person to whom you are selling the original.

However, just because that what the law says, that doesn't mean that it is either right or wrong to do so. If the lobbyists had their way, it would be considered theft to fast forward through commercials (the head of the MPAA has already made this claim).

If you want to see what the content companies really think about you and your rights, take a look at this letter from EMI Germany in this article:
http://www.theregister.co.uk/content/54/28009.html

^Cau

[maxp]

My stand-alone player will not play DVD-Rs, so I phoned the supplier and was advised that even making backups of DVD titles that you own is illegal!

[vitualis]

I believe it is legal to make back-ups of DVDs for private use.

Yes. There are complications however. With the DMCA (and the equivalent passed legislation around the world now), it is illegal to circumvent a digital copy protection device (e.g., CSS on a DVD). Depending on the exact wording +/- interpretation, breaking CSS may or may not be illegal. For example, in Australia, the emphasis is more the providing/selling/creating a circumvention device rather than it's usage so defeating CSS for home backup is probably OKAY (hasn't been tested in court though).

However, my opinion is that if defeating CSS is necessary for otherwise Fair Usage of the content you own, it is "okay".

I also know it is illegal to sell copies of DVDs as bootlegs.

Yes.

What I'm not sure about is whether there is anything wrong with selling the originals and keeping the backups. Does a person have an ethical duty to destroy a backup when selling an original? Is it just as bad to sell the original as to sell a bootleg?

Yes, there is something very wrong. Basically, once you sell the original, you no longer have a right to "Fair Use" or of that content. You probably don't have a duty to "destroy" the backup, just to not use it again.

You may still have a right under "fair use" to some of the content... It may depend on your local laws... For example, you can photocopy up to 10% of a book (or one chapter) for educational purposes even if you don't own it... I think that a similar provision exists for video and audio content (e.g., if you use a video clip as part of a lecture or presentation).

Regards.

[bbb]

Some "entrepeneurs" will sell you a backup copy of software/music/video but require you to promise that you (the buyer) already own a legal copy. In essense, they are providing a backup service for those who do not own the means to make a backup of their legal copy.

This still hinges on what is fair use.

I spoke with an pro-industry entertainment lawyer who fervidly advocates that fair use is not a "right" of consumers but an excuse that can be used by those who break the copyright law (e.g., it's fair use for a professor to photocopy some parts of a copyrighted book to teach in class--it's still against copyright law but it's excusable as long as he doesn't directly sell the material). Granted, fair use is still iffy (depending on circumstance) and the law is still changing (mainly towards protecting the music/software/movie industries).

Arguably, with DMCA, this site could be shut down even without talk of obtaining warez, reverse engineering software, and piracy/bootlegging. Fortunately, this site is based in Europe, right?

In any case, we gotta do more to expand the scope of fair use or else this site's legitimacy is doomed.

[tgpo]

Fortunately, this site is based in Europe, right?

Nope.

[vitualis]

I spoke with an pro-industry entertainment lawyer who fervidly advocates that fair use is not a "right" of consumers but an excuse that can be used by those who break the copyright law

This is the extreme stance that the recording industry/motion picture industry would like you to believe.

DON'T BELIEVE IT!!!

"Fair use" is a right that we consumers have. When we purchase an article of intellectual property there is the (rightful) expectation that we (the consumers) have a certain rights to what we can do with such intellectual property. For example, it is expected that we can make a personal backup as an insurance to damage. It is expected that we can convert the intellectual property to another medium (e.g., CD --> audio tape). Et cetera. The "fair use" provisions (and the similar type of provisions world wide) are a legal recognition of this basic right that consumers have over material they own/have purchaced. It is not a legal loophole as an "excuse" for breaches of the copyright act.

What the recording/motion picture industry wants to do is to erode away at your ability to have Fair Use of material that you have bought. Why? They want MORE CONTROL over how you consume their products. They have done this by numerous mechanisms include the introduction of technical impediments (e.g., CSS) and then legal protection of those impediments (e.g., DMCA).

Regards.