Is it legal to make a backup if...

[MrMungus]

kind of hard to debate is it legal when ads like these are all over the 'net...and endorsed by big corps like AOL and Yahoo :P




According to Baldrick, you have a right to make a backup...otherwise, there would not be guides here to show you how.

Sharing information on how to do something illegal is not illegal. That's what the DeCSS case was all about.

*sigh*

[Rookie64]

Sharing information on how to do something illegal is not illegal. That's what the DeCSS case was all about.

*sigh*

those ads are endorsements though - not just sharing info

[RabidDog]

Different countries, different laws..I think in some benighted/enlightened foriegn lands they havent even got round to drafting any copyright laws yet. Here in the Uk breaking the encryption or making a personal backup is illegal and they now have special dvd tracking cctv which can catch you indoors.

Some states in the USA will soon allow Gay marriage but still have laws banning sodomy

[adam]

There is so much confusion on this topic. If you don't want the rant skip to the last two paragraphs.

First off, there is no right to backup a DVD at all. There is only a very strong argument why we should be able to back up a DVD for personal use, and the rationale behind this site is that if anyone were ever prosecuted for such an act they would have an affirmative defense to copyright infringement.

Now on to the proposed defense. As MrMungus correctly pointed out, the Fair Use Doctrine (an affirmative defense to copyright infringement) does not even come close to granting the right to copy a DVD even for personal use. The Fair Use Doctrine is almost always applied to partial copying and almost never applied to personal use. Its intended for things like parody or educational purposes, not for archiving/protecting your investment. But Fair Use is ridiculously broad and its basically rooted in equity meaning that a judge can simply use it to protect any act that he thinks should be allowed. The Doctrine literally just says if its unfair to punish someone for something, then they shouldn't be punished.

Also a very important point is that the Fair Use Doctrine is simply the codification of a very long standing legal doctrine of fair use...again just do what's fair. Basically the examples listed as protected in the Fair Use Doctrine are not exclusive, not by a long shot. We could easily find judges ruling that personal backups are permitted without even having to rely on the Fair Use Doctrine, or we could easily find "backing up a DVD for personal use" added to the list of "Fair Uses" in the future. The problem (or rather the solution) is simply that no one gets prosecuted for these things so there is no way for the law to ever change in this area. That's fine by me.

Now as for the encryption, that's another dilemma. The Digital Millenium Copyright Act (DMCA) says you cannot bypass encryption for the purposes of which the encryption was implemented. So of course all of us are arguing that the purpose of encryption is to prevent copyright infringement (and if a court rules backups are legal than that means we have an affirmative defense to the DMCA in this area too.) This whole DMCA issue is really not important as far as I'm concerned. DMCA specifically says it does not apply to acts protected by Fair Use. Since Fair Use is the most likely way that personal backups will be upheld as legal, it all goes back to whether you have the right or not.

Basically, as the law stands now there is no right to backup a DVD. However, if this were ever tested in court things would probably change. The fact that this issue will probably never be tested shouldn't hold anyone back, IMO. There are plenty of antiquated/illogical laws that only exist because no one has standing to challenge them. In several states its still illegal to dance on Sunday.

The advent of computers has just put too much doubt into copyright law. Until we get some actual caselaw on these matters you should simply let your conscience be your guide...in my opinion.

[Augster]

MR. Mungus (as does adam. Posted while I was ranting. LOL!)has it exactly correct. NO copying is legal, regardless of encryption or not. You want a second copy? Go buy another one. THAT'S what everyone SHOULD have learned from the RIAA's crusade. Is it legal to copy your CD's so you don't scratch them in the car? NO. You want a second copy? GO BUY ANOTHER one. That is the point of law. IN the US. Why did all those folks get sued by the RIAA? Because they left an electronic paper trail that told EXACTLY who they traded songs with.

Will you get caught? Unlikely. But buying a DVD "with 50 friends" or whatever is illegal. Always has been. Can they catch you? Not at this time. If you get pulled over and the officer sees your Ritek04 version of Two Towers in the passenger seat, is he going to bring you in? No. So, to answer the original questions, as Mr. Mungus has done before and seems to have fallen on deaf ears, How many? None. Who can play them? Whoever has the original can play the original. When? Mondays at 2:00. AM or PM, your choice.


The DMCA is being wielded, I feel as do many others, unconstitutionally against your first-amendment rights. If the DMCA is allowed to continue on it's current path without any other amendments or repeals, the RIAA and the Film industry will be looking at the bigger fish soon enough. In it's present form, the DMCA gives the film industry the RIGHT to shut down sites like DVDRHelp.com. Any site that HOSTS files that just "MIGHT" allow you to manipulate thier DVD's, has the potential of being shut down and sued for lots-o-cash. That's for the sites that host the files. Just look what DirecTV has done as a model for other businesses hiding behind the DMCA. You'll still be allowed to "talk" about backing up copies etc. But for how long? If the various Media industries and the Gov't have their way, you WON'T be able to DISCUSS illegal endeavors on the internet. "Well that violates my first amendment rights! Freedom of the Press!" That's all well and good for now. Soon though. And it is coming. You can thank September 11th for the turn for the worse. They voted more than a few things in, shortly after, thinking "anti-terrorism, anti-terrorism". Now you couple that with the large amount of money the music and film industry have to throw in the hat, and you have new interpretations of the law. Soon, if you are in the US, and discuss ANYWHERE on the net a terrorist plot, you can expect a knock on your door. You want to know how to make a pipe bomb? Expect the knock. And since backing up DVD's, CD's etc. is actually "terrorism" to the Music and Film industry, you can see what happened to the Napster folks. It's coming. Once DVDRHelp re-opens it's doors, all you will be able to discuss is how to put home video onto the various formats. Talking about Piracy, and lets face it, that's what a back-up is, will be strictly forbidden. Much like talking about Warez is now.

Sorry for the rant. If you think we should be able to make back-ups, write your congressmen. Email them. Have them repeal the DMCA. It's only going to get worse.

[Tommyknocker]

Wow. I thought Chicken Little was just a fairy tale character.

[MrMungus]

Also a very important point is that the Fair Use Doctrine is simply the codification of a very long standing legal doctrine of fair use...again just do what's fair. Basically the examples listed as protected in the Fair Use Doctrine are not exclusive, not by a long shot. We could easily find judges ruling that personal backups are permitted without even having to rely on the Fair Use Doctrine, or we could easily find "backing up a DVD for personal use" added to the list of "Fair Uses" in the future. The problem (or rather the solution) is simply that no one gets prosecuted for these things so there is no way for the law to ever change in this area. That's fine by me.

The problem here is that companies that produce and sell copyrighted works can demonstrate that if you let people make backup copies or transfer videos to DVD, they lose money. How many people now own the DVD version of VHS movies they've owned?

But anyway, I'm just playing devil's advocate here. The law is ignored and people breaking the law is ignored all the time with few ill consequences.

[MrMungus]

MR. Mungus (as does adam. Posted while I was ranting. LOL!)has it exactly correct. NO copying is legal, regardless of encryption or not. You want a second copy? Go buy another one. THAT'S what everyone SHOULD have learned from the RIAA's crusade. Is it legal to copy your CD's so you don't scratch them in the car? NO. You want a second copy? GO BUY ANOTHER one. That is the point of law. IN the US. Why did all those folks get sued by the RIAA? Because they left an electronic paper trail that told EXACTLY who they traded songs with.

Will you get caught? Unlikely. But buying a DVD "with 50 friends" or whatever is illegal. Always has been. Can they catch you? Not at this time. If you get pulled over and the officer sees your Ritek04 version of Two Towers in the passenger seat, is he going to bring you in? No. So, to answer the original questions, as Mr. Mungus has done before and seems to have fallen on deaf ears, How many? None. Who can play them? Whoever has the original can play the original. When? Mondays at 2:00. AM or PM, your choice.

Actually, I *think* copying music for personal use *is* legal (in fact, that's where a lot of the confusion over video comes about). Maybe that's changed.

And about buying the DVD with 50 friends, I don't think that's possible. I don't think you can (legally) act as an organization unless you are legally organized as an organization (say, a corporation or LLC). *Someone* has to hand the cashier the money. And of course that will be on surveillance video. But you can't copy that video if it's copyrighted.

[housepig]

So my backup of my irreplaceable Criterion version of "Spinal Tap" makes me dishonest? I don't think so.

Here are several reasons why your disc is not "irreplaceable"....

[adam]

How many people now own the DVD version of VHS movies they've owned?

Well that's different. When you purchase the user licence along with the movie it doesn't grant you a right to watch the movie generally, it grants you the right to use the medium itself. So if you purchased the VHS and want it on DVD, you've got to buy the DVD. Otherwise people could just take it off the shelves and say, "its ok I own the VHS."

The movie company can argue all they want that they lose money on people backing up their DVDs because now they can only sell 1 of each DVD to each customer, but if a court rules that backups are legal than that means the companies are not entitled to that extra sale so they really aren't loosing anything at all. I mean you can easily argue that production companies loose money from the sale of VCR's too, that arguement was made in the past and failed.

[sacajaweeda]

true it's unlikely scenereo to get busted fo doing this, but some day a person may get busted for infringement, p2p or something, adn the police may raid the house, and if that's the case a guy may want to keep his home squeeky clean.

P2P is perfectly legal.

[haloblack]

So my backup of my irreplaceable Criterion version of "Spinal Tap" makes me dishonest? I don't think so.

Here are several reasons why your disc is not "irreplaceable"....

Heh... I knew it wouldn't take long to get busted on that. What I meant (and should have said) was that since my Spinal Tap is out of print and I can't go to the store and get a new one, I don't feel at all "dishonest" (as the previous poster stated) by making a copy to watch while the original stays safe. Of course, that's the same poster who said that he sees nothing wrong with handing out 50 copies of a movie to his friends as long as he doesn't get caught, so I think my argument was wasted.

The Fair Use Doctrine is almost always applied to partial copying and almost never applied to personal use. Its intended for things like parody or educational purposes, not for archiving/protecting your investment.

Wasn't a large part of the Fair Use debate centered around the right to make copies of software as investment protection? I've always believed that the same ideas applied to dvd's. Am I completely off-base there?

(btw - excellent dissertation there, Adam.)

[housepig]

Heh... I knew it wouldn't take long to get busted on that.

I do what I can...

Wasn't a large part of the Fair Use debate centered around the right to make copies of software as investment protection? I've always believed that the same ideas applied to dvd's. Am I completely off-base there?

the debates on Fair Use predate software by a long time. one of the things that confuses this issue is that many old software licenses did allow the making of a backup copy for safety purposes... but that's a license granted by the copyright holder, not U.S. Copyright law. it applies to specific software in specific situations, not globally to anything.

[raks]

i seriously doubt that anyone gives a rats ass about all those legal issuses

[Gazorgan]

Most of you are making a false assumption.

You don't own the Movie. Period, it's not up for discussion. Read the rights and terms on the package.

You own a piece of plastic or a magnetic tape. Herein lies the problem. Computer software (from which all these 'backups' stem, as it was standard practice to backup your software, stash the original, then work from the backups) doesn't really care about media type. You can by licenses without media. There's no equivalent for Video.

Now since you don't own the movie, it's not legal to back it up. This is the MPAA's total defense. You don't even own the rights to a copy of the movie (read the EULA). You own some plastic that happens to have a movie on it.

Now if you take that as a given, it's gets grey/fuzzy about your backup copy. After all it's just plastic with a movie on it. If you didn't buy it or sell it, and you didn't circumvent the copy protection yourself, did an actual crime exist? Someone circumvented the copy protection, and that's a crime, but whether you having the disk is a crime has never been tested in court.

It's kinda like having MAME roms (legal), and an emulator (legal), but roms+emulator isn't legal. Nor is using the ROMS without licensing them (with some public exceptions) legal.

Just wait until the MPAA pulls an RIAA....

[housepig]

i seriously doubt that anyone gives a rats ass about all those legal issuses

....until they get busted for them...

and I'm sure the MPAA doesn't care, that's why they are spending so much money on an ad campaign to guilt people into not sharing digital media...

no one gives a rat's ass at all, you bet.

[adam]

You own a piece of plastic or a magnetic tape.
Now since you don't own the movie, it's not legal to back it up.

These statements are completely contradictory. (I realize you are just stating the opposing view, not necessarily supporting it). I don't need to own the movie to backup the DVD, I own the rights to the piece of plastic. THAT is what I am backing up. At first glance this sounds semantic but its not. Its analagous to time-shifting which is protected under Fair Use. If I buy cable service I am buying a user license to watch certain movies. I have no right in the movie itself, just to each broadcast of it provided through this service. Since I have a right to watch the broadcast I have a right to preserve that broadcast for viewing at a later date. I am backing up the broadcast (which is what my user license covers) even though I am technically violating the copyright on the movie contained in that broadcast. Fair Use provides the exception to the copyright.

Its the exact same deal with DVDs. I am backing up the piece of plastic (which the user license covers) and in doing so I am violating the copyright on the movie which the medium contains. The only question is whether Fair Use (or some other provision) should grant me an exception to the copyright. It all boils down to whether backing up the DISK itself is a protected right. No one is arguing they have a right to backup the movie, only to backup the very thing they purchased...the disk to which they have a user license.

If you had ownership rights in the movie than copyright would not even be an issue. We are talking about an exception to copyright, which means ownership in the copyrighted material is immaterial.

[MrMungus]

You own a piece of plastic or a magnetic tape.
Now since you don't own the movie, it's not legal to back it up.

These statements are completely contradictory. (I realize you are just stating the opposing view, not necessarily supporting it). I don't need to own the movie to backup the DVD, I own the rights to the piece of plastic. THAT is what I am backing up. At first glance this sounds semantic but its not. Its analagous to time-shifting which is protected under Fair Use. If I buy cable service I am buying a user license to watch certain movies. I have no right in the movie itself, just to each broadcast of it provided through this service. Since I have a right to watch the broadcast I have a right to preserve that broadcast for viewing at a later date. I am backing up the broadcast (which is what my user license covers) even though I am technically violating the copyright on the movie contained in that broadcast. Fair Use provides the exception to the copyright.

Its the exact same deal with DVDs. I am backing up the piece of plastic (which the user license covers) and in doing so I am violating the copyright on the movie which the medium contains. The only question is whether Fair Use (or some other provision) should grant me an exception to the copyright. It all boils down to whether backing up the DISK itself is a protected right. No one is arguing they have a right to backup the movie, only to backup the very thing they purchased...the disk to which they have a user license.

If you had ownership rights in the movie than copyright would not even be an issue. We are talking about an exception to copyright, which means ownership in the copyrighted material is immaterial.

You're confusing time shifting, which is legal and has been proven to be legal in court, to copying, which is illegal.

[Tommyknocker]

You own a piece of plastic or a magnetic tape.
Now since you don't own the movie, it's not legal to back it up.

These statements are completely contradictory. (I realize you are just stating the opposing view, not necessarily supporting it). I don't need to own the movie to backup the DVD, I own the rights to the piece of plastic. THAT is what I am backing up. At first glance this sounds semantic but its not. Its analagous to time-shifting which is protected under Fair Use. If I buy cable service I am buying a user license to watch certain movies. I have no right in the movie itself, just to each broadcast of it provided through this service. Since I have a right to watch the broadcast I have a right to preserve that broadcast for viewing at a later date. I am backing up the broadcast (which is what my user license covers) even though I am technically violating the copyright on the movie contained in that broadcast. Fair Use provides the exception to the copyright.

Its the exact same deal with DVDs. I am backing up the piece of plastic (which the user license covers) and in doing so I am violating the copyright on the movie which the medium contains. The only question is whether Fair Use (or some other provision) should grant me an exception to the copyright. It all boils down to whether backing up the DISK itself is a protected right. No one is arguing they have a right to backup the movie, only to backup the very thing they purchased...the disk to which they have a user license.

If you had ownership rights in the movie than copyright would not even be an issue. We are talking about an exception to copyright, which means ownership in the copyrighted material is immaterial.

Finally, a voice of reason. All through this debate, I could not help but wonder if copying movies for archival purposes is illegal, why do so many programs exist that can do it?

If teaching and advisors others how to back up DVDs is aiding and abetting a criminal act, why hasn't this board been shut down, or at least been warned about its illegal activities from the legal arm of the MPAA?

I feel the reason is that copying for archival purposes is legal, and have never heard of anyone going to the "joint" for backing up "Finding Nemo" so his kids can watch it whenever they want without damaging the original.

[MrMungus]

Finally, a voice of reason. All through this debate, I could not help but wonder if copying movies for archival purposes is illegal, why do so many programs exist that can do it?

If teaching and advisors others how to back up DVDs is aiding and abetting a criminal act, why hasn't this board been shut down, or at least been warned about its illegal activities from the legal arm of the MPAA?

I feel the reason is that copying for archival purposes is legal, and have never heard of anyone going to the "joint" for backing up "Finding Nemo" so his kids can watch it whenever they want without damaging the original.

It's legal to sell software to do so because it's not *just* for copying or "backing up" copyrighted material.

[duhmez]

<rant> NOT ALL DVD's ARE ENCRYPTED

you may think they are because you re using dvddecryptor to ript hem, but decryptor will work on unprotected disks just fine.

</end rant>

[adam]

You're confusing time shifting, which is legal and has been proven to be legal in court, to copying, which is illegal.

I don't know how I can be confusing copying a DVD with time-shifting when I specifically said I was analogizing one to the other. I'm comparing them to each other for a reason, not because I can't tell the difference. They are both very similar in practice. One is protected under Fair Use. The argument is that the other one would be protected under Fair Use if the question were ever presented in court...it seems like a logical comparison to me.

You are incorrect. Copying is NOT illegal as the laws you have linked to have specifically said. Some forms of copying are legal under Fair Use, just as time shifting is legal under Fair Use. The only difference is that copying a DVD has yet to be tested in a court of law. In my opinion it is the perfect analogy. It gets right to the heart of the matter. Time-shifting violates copyrights, but we have a right to do it anyway because it would be "unfair" for us not to. We have a right backup the CARRIER of the copyrighted source. Copying DVDs violates copyrights, but if it were ever tested in a court of law it may get the exact same treatment as time shifting since a court could easily rule that consumers have a right to copy the CARRIER of the copyrighted source . If you research the Fair Use arguments behind the right to backup a DVD you will see that time-shifting is the most often cited analogy. They are based on identical principles. There is nothing "confusing" about it.

The point I was making is that ownership of the content is irrellavent. If you have a right to copy the medium than you have an affirmative defense to the copyright infringement of the material being copied. That's the whole Fair Use argument behind copying a DVD.

[adam]

If teaching and advisors others how to back up DVDs is aiding and abetting a criminal act, why hasn't this board been shut down, or at least been warned about its illegal activities from the legal arm of the MPAA?

I feel the reason is that copying for archival purposes is legal.

Copying copyrighted DVDs is most certainly not legal. There is no law granting this right and it is not a fundamental right in any possible sense. There is nothing more than a very strong possible defense to this form of copyright infringment and the belief that the only reason there is no specific law allowing this is because no one has standing to raise the legal question. Like I said, this same reasoning applies to countless other laws as well.

The reason sites like this and programs for backing up DVDs are legal is because a DVD is simply a medium. It is the content on it which contains the copyright. You can use the information on this site or the latest version of DVDxCOPY to make a copy of a home movie I shoot. There is nothing illegal about it. If I go and get a copyright on it and pay the licensing fees for CSS encryption THEN it is illegal for you to make a backup copy under both copyright law as well as the DMCA. BUT if you first purchased a copy and then made a personal backup, well it would still be illegal but if I pressed charges you might be exempted from violating my copyright under some type of Fair Use reasoning. That is what we are all talking about.

If information or tools were illegal simply because they could be used for illegal purposes than all crowbars would be illegal. So would blank cds, DVDs, VHS tapes etc...

[MrMungus]

You are incorrect. Copying is NOT illegal as the laws you have linked to have specifically said. Some forms of copying are legal under Fair Use, just as time shifting is legal under Fair Use. The only difference is that copying a DVD has yet to be tested in a court of law. In my opinion it is the perfect analogy. It gets right to the heart of the matter. Time-shifting violates copyrights, but we have a right to do it anyway because it would be "unfair" for us not to. We have a right backup the CARRIER of the copyrighted source. Copying DVDs violates copyrights, but if it were ever tested in a court of law it may get the exact same treatment as time shifting since a court could easily rule that consumers have a right to copy the CARRIER of the copyrighted source . If you research the Fair Use arguments behind the right to backup a DVD you will see that time-shifting is the most often cited analogy. They are based on identical principles. There is nothing "confusing" about it.

The point I was making is that ownership of the content is irrellavent. If you have a right to copy the medium than you have an affirmative defense to the copyright infringement of the material being copied. That's the whole Fair Use argument behind copying a DVD.

OK, OK. I give up. It's illegal until case law clarifies it. Stay tuned!

[gravyonmychin]

The bottom line here is quite simple...The Film producers are openly ripping Joe Public off. The cost of an average DVD (£15-£20) is way too high.As far as im concerned I aint going to be ripped off and then have my kids damage the original now am I. So as far as im concerned, untill they sell for a few quid they can kiss my ass and i'll make a copy to safe guard my expensive original!
Scenario...I make 20 music cd's for use in my car which gets broken into and they are then stolen. Cost loss..£2 Should I have left the originals in and forced the insurance company to replace them at full cost? Cost to them...£240 Would the insurance company prefer me to use copies for the car or should they bite the bullet and pay up for fear of being seen to promote piracy...Hmmm

[Sifaga]

Cost to you £2 , cost to the insurance £240, thats a £238 profit, not bad

[adam]

It's illegal until case law clarifies it. Stay tuned!

Exactly!

[shutterbug]

Actually, I *think* copying music for personal use *is* legal (in fact, that's where a lot of the confusion over video comes about). Maybe that's changed.

You are correct, and one of the few in this thread who seems to actually understand. The Audio Home Recording Act of 1992 allows you to make a copy of your music for personal use.... Selling cd's, giving them away, and having 10 broke friends buy a $12 cd to make 12 copies isn't Personal use--it's stealing.

That's audio. The laws are stricter when applied to movies and motion pitcures.

[lordsmurf]

So if you purchased the VHS and want it on DVD, you've got to buy the DVD. Otherwise people could just take it off the shelves and say, "its ok I own the VHS."

I like you, but that's a dumbass argument.

You providing your own time and materials is not the same as taking somebody else's time and materials.

That may really be the "legal" analysis, I don't know, but it's surely NOT common sense by any means.

I'm waiting for software and video/audio to be lumped together, after all, they are both JUST CODE on a piece of storage media.

[Sabro]

Illegal, not illegal, immoral, best thing since DeCSS and almond cookies, either / or I wonder how this (as well as 'copyrighted' software, since it's kinda the same issue) holds up when it comes to off site storage.

You just know those large corp's are only making data backups and not full system back ups of mission critical systems containing copyrighted software that is stored offsite. Same holds true with other media as well (maybe DVD, then again maybe not).... It's a thin line and I'm not posting to condone or condim (SP!) the backup procedure, just wondering how offsite storage would hold up since it seems to be legal (atleast here in the states).

So, for the person who posted the comment about multiple people going in to purchace the DVD, and how many copies could legally be made etc, wouldn't that fall under a cheesy site licence type deal since alot of companies do this but the actual software is installed on multiple machines at different locations (sometimes, site referring to the company owning the legally purached software/media and not the actual location).
Maybe I'm way off here, but I've never run in to a case where someone has been arrested/etc and had to mention, whoops the original legally purchaced item is stored at location so and so......hmmmm

Sincerely,

Sabro