DVD Back-Up Legal Info

[adam]

Roandabout I think you are misinterpreting my posts. I'm not trying to be argumentative either. So far, I have basically just been trying to answer your questions.

Yes time shifting requires copying, but it is a legal form of copying. The material is copyrighted, and you are breaking the copyright. You are literally doing exactly what the copyright says you cannot do. Under most other circumstances this would be illegal. BUT under fair use you have a right to time shift, just like you have a right to copy for use with a parady, or to copy for educational purposes. Fair use is an affirmative defense to copyright infringement. An affirmative defense means you say, yeah I did it but you can't punish me for it. The reason is because under fair use, time shifting is an exception to the copyright. If you pay to watch it, you have a right to put off watching it until a later time.

As for my use of the term "copyright protection" I agree this could be interpreted several ways but as far as the DMCA is concerned this is a common term which means a physical tool used to protect the copyright. If something has a copyright, than it is referred to as copyrighted. If that medium has special protection on it which prevents copying, then it has copyright protection. If digital broadcasts used special encryption, then yes under the DMCA you could not copy them even for time shifting purposes. But then there would be a direct conflict between DMCA and Fair Use, and one would have to give way. This is the current situation with DVDs. If a DMCA violation was filed against someone backing up their own DVD, most likely the right to do so would be found to be allowed under Fair Use. Then there would be the same conflict, and most likely DMCA would have to be amended.

Most digital broadcasts have copyrights but they don't have copyright protection, so there is no possible way to violate DMCA in copying them. You can still violate their copyrights though, by, for instance, copying them for distribution. You have violated the copyright, and you have no excuse. If you violate the copyright for time shifting purposes, which is a legal excuse, then you are fine.

In regards to DVDs, you could copy a DVD legally too. You could bypass the encryption and violate the copyright if you were, for example, copying an excerpt for use in a classroom. Educational purposes fall under Fair Use, so neither the copyright nor the DMCA could be used against you.

There are legal reasons and illegal reasons to copy something. If you have a valid legal reason to copy it, then the DMCA does not apply. But the DMCA only illegalizes the bypassing of copyright protection, so under no circumstances does it ever apply to any kind of broadcast. Copyrights of course always apply regardless of the medium, but as I have said, there are affirmative defenses to a violation of a copyright.

[Roundabout]

adam,
I didn't think you were trying to be argumentative at all, I appreciate your responses to my questions. I said I was not trying to be argumentative. I didn't want you to misinterpret what I was trying to say as trying to argue.
You said: "The material is copyrighted, and you are breaking the copyright. You are literally doing exactly what the copyright says you cannot do." So, if I read what you said correctly, one law trumps the other in this case?
In the case of Copyright Protection vs. Copy Protection, in my mind anyway, it's two completely different things. Copyright protection means you cannot copyright protected works, be it a movie, book, or whatever, for your own gain, monetary or otherwise. Copy Protection, on the other hand, to me, seems to be the METHOD of preventing copying, whether electrical or mechanical - i.e. CSS, Macrovision, etc. Maybe I'm wrong.
Are you absolutely certain that digital broadcasts (network broadcasts) have no form of encryption at all? Just because a set top box can receive them and you pay no fees, doesn't mean there is no form of encryption, but I really don't know at all. It's something I'll look into with some of my friends at Sony later.
'nuff said on this subject for now. Thanks again for your responses. You know a lot more about this subject than I do and you obviously have spent a lot more time researching it, and I appreciate your input.

[adam]

You said: "The material is copyrighted, and you are breaking the copyright. You are literally doing exactly what the copyright says you cannot do." So, if I read what you said correctly, one law trumps the other in this case?

No, and I should have been more clear about this. Fair Use is one PART of overall copyright law. The copyright provisions grant certain rights by way of a copyright. Then the Fair Use portion of those provisions provide exceptions to the copyright, and specify instances in which the copyright provisions cannot be enforced. There is no conflict of laws, because they are one in the same. Fair Use is an affirmative defense to copyright law. It says that you can break section A of law #1, because under section B of law #1 it says its ok.

Are you absolutely certain that digital broadcasts (network broadcasts) have no form of encryption at all?

Well, I'm pretty sure. I'm not sure what good digital encryption would do since most of the stuff is captured as analogue anyway. But since you have a legal right to time shift, it would probably be illegal to encrypt the material.

[Roundabout]

adam,
Actually I've enjoyed discussing this subject, it's very interesting.
You said: "It says that you can break section A of law #1, because under section B of law #1 it says its ok."
Wow, I wish more laws were written like this! But Officer, I was speeding but it's OK. I know it's illegal to speed, but the speeding laws allow me to speed if there are no signs posted with any limits...
As for encryption on network digital broadcasts, I remember reading something a while back about the concern there was over the "connection" between digital receivers and the TV - that once TV's have a digital input, the signal will stay all digital between the set-top box and the TV, no conversion from digital to composite or component video. They were concerned the signal could be "intercepted" and copied digitally, and the last I heard, it was undecided how they would be able to stop this. Therefore, you can see the impetus to install some form of digital encryption into the stream, to prevent copying. That's why I asked if you were sure if there wasn't some form of encryption on network digital broadcasts. If not now, there may be later, where you have to have some form of decoder to watch the broadcast. Even if the broadcast is still "free", you have to have the correct hardware to receive it.
Thanks again for all your input. I'll do more reading about it when I have time. Ultimately, though, we know that courts will decide what happens with our rights.

[adam]

adam,
You said: "It says that you can break section A of law #1, because under section B of law #1 it says its ok."
Wow, I wish more laws were written like this! But Officer, I was speeding but it's OK. I know it's illegal to speed, but the speeding laws allow me to speed if there are no signs posted with any limits...

Actually, almost all laws are written like this. Its impossible to draft a law which works in all situations all the time. That's why exceptions are made, either in the wording of the law or through judicial interpretation.

For instance, there are exceptions to speeding laws, but it will vary from jurisdiction to jurisdiciton. Many jurisdictions provide a justification exception, which might apply, for instance, if you were rushing your wife to the hospital during labor. Or an even more obvious exception would be in regards to a privilege. Police officers and ambulance drivers are allowed to speed for obvious reasons.

See, when it comes to the law, for every rule there are probably at least 3 major exceptions, and often its more like 30 exceptions.

[Craig Tucker]

Police officers and ambulance drivers are allowed to speed for obvious reasons.

There was a case here recently where an ambulance driver was caught speeding by a speed camera and had penalty points issued to his license. He was transporting human organs for transplant so time was of the essence. Basically it took a huge article in one of the major papers here and public outcry to overturn the conviction.

Anyone with any common sense could see that there was some jobsworth in need of a good kick up the arse, and this could have been done privately without making a laughing stock of the British justice system. At times I really dispair of some of the decisions made by the people running this country.

[flaninacupboard]

At times I really dispair of some of the decisions made by the people running this country.

Only at times?! wow you're obviously a lot more easy going than me!
Incidentally, are you for or against this new microchip/roadside scanner idea?

[Craig Tucker]

Is this the device that will scan numberplates and cross reference against a car being legal i.e. taxed and insured.

[AND1]

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

I didnt read the entire thread so if I missed something dont jump on me. Someone mentioned the quote above. If I'm right, can I copy just the movie part of a DVD and it'll be considered legal for my backup as I haven't copied the whole thing?

[adam]

No.

[housepig]

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

I didnt read the entire thread so if I missed something dont jump on me. Someone mentioned the quote above. If I'm right, can I copy just the movie part of a DVD and it'll be considered legal for my backup as I haven't copied the whole thing?

nope - limited portions, not "all the good stuff"

here's a breakdown of the four factors for Fair Use :

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes.
  
  The nature of the copyrighted work -- A particular use is more likely to be fair where the copied work is factual rather than creative.
  
  The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.
  
  The effect of the use upon the potential market for or value of the copyrighted work -- If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use.

from the Electronic Frontier Foundation's "Fair Use FAQ"

so you'd fail on at least two counts, IMO - you are taking a substantial portion of the work, and it has a direct market impact (you won't be buying another copy as a backup!).

[flaninacupboard]

No, it picks up a signal from a microchip in your car. but yes, it then checks for mot, insurance, legal status etc, and staggered recievers will monitor speed and automatically prosecute. also, they could be used in car parks, so if you go over your alotted time, instant fine.

[ChrisX]

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.

This isn't legal at all in Australia and this includes music CDs as well and nothing like America's fair use. However, computer backup of programs and applications is allowed here for personal purposes.

This is a quote: "The ACCC notes that consumers currently do not have the right under Australian copyright law to make any copies of CDs, regardless of whether the copies are for personal use".

This also applies to DVDs as well and therefore illegal here in Australian law.

Check out on copy-protected: http://203.6.251.7/accc.internet/digest/view_media.cfm?RecordID=870

I do wish it is legal to backup here for personal use just like America's fair use. I don't think anyone has ever been prosecuted for copying at home for example.

Regards
Chris