Legality of DVD ripping under fair use / TEACH Act?

[midimidi]

I work at a particular educational institution and I just wanted to hear this community's "opinions" and "facts" concerning the legailty of DVD ripping.

In particular, we have been asked by another department to convert very short clips of mainstream films from DVD media to an online streaming media to be viewed in online classrooms. The media would be under secure authentication (username/password), and the department's justification for providing the clips is the Fair Use and the TEACH Acts.

Ethics aside, I suppose it is entirely possible that showing this media for education is legal (especially under a secure area), but what about bypassing a DVD's encryption and converting the media? Isn't that illegal - period? My assumption right now is that breaking DVD encryption is the only way to provide the media online in RealMedia format, but I could be wrong about that as well.

Just curious what people "think" and "know" as I research it myself~

[adam]

Read my post here for the long answer:
http://forum.doom9.org/showthread.php?s=&threadid=86695

The Teach Act amended Title 17 to allow for certain explicit Fair Use and other rights pertaining to the copying and display of copyrighedt works for educational purposes. Included in these amendments was the express prohibition against violating any copy protection mechanism in the process. The applicable provision is 17 USCS 110(2)(D)(ii)(II) which states that such and such is not an infringement so long as (among other things) it :

does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination

In other words, to legally assert protected educational copying and display under sections 107 and 110 of Title 17 (basically what TEACH Act amended) you must find a source which does not have copy protection mechanisms, which pretty much rules out DVD in most cases. If you do find an analogue source which is not protected then you are allowed to digitize it under this Act so that is one way to get to your desired RealMedia format.

Its not illegal per se to break the encryption on DVDs if another provision of Title 17 makes it permissible. The DMCA, which is what makes the breaking of the encryption a violation, provides an exception for Fair Use rights and other rights provided under Title 17. As I stated above, the sections affected under the TEACH Act don't cut it, but general Fair Use rights still can. So the question is whether the courts in your jurisdiction have ruled that the type of copying you want to do is Fair Use or not. It varies. If you tell me what state you are in I may be able to answer this for you.

[BrainStorm69]

I suggest you consult your educational institution's legal counsel to obtain an actual legal opinion on this topic. No disrespect to Adam or anyone else who might post on this topic, but that's the safest course of action.

[lordsmurf]

If you do find an analogue source which is not protected then you are allowed to digitize it under this Act

Legality of TBC in this scenario?

[Tommyknocker]

That's a good question. Do TBCs circumvent copy protection?

[drjtech]

That's a good question. Do TBCs circumvent copy protection?

If your source material was protected by Macrovision then a TBC does indeed circumvent copy protection. I doubt that a court would accept the argument that Macrovision circumvention was an unintended side affect.

I am not a lawyer and I do not play one on TV.


I agree with BrainStorm69 that you should seek the advice of your institution's legal counsel.

-drj

[midimidi]

Thank you all for the feedback.

Adam - other than seeking advice from my institution (which may or may not be correct I suppose), where would you go to check a state's law concerning this matter?

So the question is whether the courts in your jurisdiction have ruled that the type of copying you want to do is Fair Use or not. It varies. If you tell me what state you are in I may be able to answer this for you.

[adam]

I would look up caselaw involving similar issues on either Westlaw or Lexisnexis. Your institution's legal dept. may already have an account, otherwise anyone can sign up for a transactional account which isn't too expensive. You are not going to find a local statute on this, its all going to be through caselaw interpretation of Title 17, which preempts any local laws on the matter.

As far as Macrovision, it is one of the copyright protection mechanisms expressly covered under the DMCA, and I would think that a TBC would be a circumvention as well.

[midimidi]

Thank you all for your feedback. I have talked with a number of staff concerning this, and I have not been given a clear cut answer concerning the technical aside of actually breaking CSS encryption. I have e-mailed our legal department asking for advice.

If no one can give me a straight answer, is there any way to protect myself? i.e. most likely, I will not even physically do the conversion, but I will be providing the instructions on how to do it.

[MOVIEGEEK]

AFAIK If you are in posession of a circumvented DVD(or the video/audio) you are in violation of the DMCA,it doesn't matter how you obtained the disc or if you have the original.
http://www.usg.edu/admin/legal/copyright/teach_act.phtml
I recommend you have a lawyer copy the DVD so he/she is responsible.

[adam]

midimide, I thought I did give you a clear cut answer. The Teach Act, or rather the sections affected by it, expressly state that you cannot bypass protection methods and still seek protection under those sections. You can, however, still permissibly break encryption for a Fair Use purpose. Once again, this will vary according to your jurisdiction and so there is no way I can give you any further information without knowing where you are located, and even then this may still be an issue of first impression in your jurisdiction.

Breaking encryption of a DVD is made a violation by, and only by, the DMCA. Under this same section it expressly states that NOTHING in it can preempt any right provided under another chapter. Therefore, if you are engaging in a Fair Use act it is NOT a violation to bypass DVD encryption. Like I stated earlier, breaking encryption on a DVD to extract an excert for the purpose of parody or satire is wholly permissible and is neither a violation of copyright generally, nor section 1201 (DMCA.)

I believe I already stated all of this in my post which I linked to initially but I will reiterate the only things you can really do to protect yourself. Contact the copyright holder and ask permission first. This is always the first step even if it is futile for some sources. If you choose to proceed with copying, asserting your rights under Fair Use, than fill out one of these for each source you copy.

http://www.lib.ncsu.edu/scc/copyright/worksheet.pdf

This can be used to show good faith and a lack of intent to violate the copyright (assuming you actually fill out the form in good faith and it isn't proven otherwise). This does not completely protect you, but it will limit the damages that can be sought against you, ie: no punitive or criminal.

[sacajaweeda]

This one looks like a potential stat padder.

[hech54]

Why does nobody question the legality (in SUCH depth) of "backing up" DVD's?
Could it be that the attitude is "Who is going to tell the correct person in charge"?
What are the odds of a person who has the ability to prosecute you(us) for backing up DVD's(or doing what the original poster is doing) actually finding out about such activity?
The more you talk about it...the more people know about it.

[adam]

I'm pretty sure the legality of backing up DVDs has been questioned in far greater depth on this forum than the current issue. It seems the issue comes up at least once per week. I know I've expressed my opinion on this matter several dozen times at least.

I know for a fact that many many individuals were prosecuted for exactly what the original poster wants to do, and that's why the TEACH ACT was created. It still doesn't permit the breaking of encryption, but before the act it was a minefield of Fair Use caselaw to wade through to determine whether your jurisdiction allowed you to stream media for educational purposes. Now it is permissible provided you take certain precautions.

No, no one is going to be prosecuted for backing up a DVD. The copyright holder would not be able to receive enough in damages to make suit worthwhile. But an institution has plenty of money and every single time the suspect file is accessed that is one instance of infringement for which statutory damages can be claimed. Believe me, if an instution is not careful about how they provide access to copyrighted materials, they WILL gets the pants sued off of them.

[midimidi]

No, no one is going to be prosecuted for backing up a DVD. The copyright holder would not be able to receive enough in damages to make suit worthwhile. But an institution has plenty of money and every single time the suspect file is accessed that is one instance of infringement for which statutory damages can be claimed. Believe me, if an instution is not careful about how they provide access to copyrighted materials, they WILL gets the pants sued off of them.

This is a superb point adam, and the main reason why I am so cautious. Thank you for your insight, and I'll report back anything I hear from our legal people.

[hech54]

Again:
What are the odds of a person who has the ability to prosecute you(us) for doing what the original poster is doing actually finding out about such activity?
I understand being cautious and getting a professional legal opinion on the matter but how much manpower is being devoted by the powers to be to actually look for evidence of such activity?

[adam]

I don't see how that is relevant. Legality is not based on whether or not there is a chance of getting caught.

I'd say the chances of anyone getting sued for copyright infringement are slim in general, but like I said, there are many many cases in which institutions have been sued for copyright infringement and these types of suits are filed everyday. Also, institutions and organizations are scrutized much moreso than individual infringers.

If they are an accredited university they can also get in trouble for questionable behavior/programs even if the affected copyright holder has no idea of the infringement.

In short, its better to be safe than sorry. I would be suprised if any university set up a widely accessible server, that hosted potentially copyrighted media, without first obtaining a legal opinion. It'd be reckless not to.

[midimidi]

Thank you again all for this discussion.

I just finished talking with our copyright experts. The general consensus is of course to be wary, but we have agreed that we can use media online IF:

1) the media is a short clip
2) the media is in a secure password protected area
3) the media URL is given in a confined area only (online classroom)
4) the media is not copied through breaking ANY encyption or protection methods (CSS and/or Macrovision

Of course, getting permissions is the best method, but it sounds like it will typically be costly, even just for educational purposes.

With that in mind, my tutorials will simply provide all steps except for the portion with DVD Decryptor. I got the A-OK that if something has Macrovision, but not CSS encryption, we CAN use it.


A few more questions for you Adam, or others if you can answer them:

1) Where does DVD Decryptor tell you if a DVD is protected by either CSS or Marcovision. Is there a small, very simple app out there that can tell me this easily?

2) If I can copy DVD media via software like DVD Shrink or AutoGK, does it contain ZERO digital-based protection?!

Thanks again everyone! Appreciate it.

[BSpielbauer]

midimidi (and all):

I am in a similar, but not identical conundrum...

I am a high school media specialist / librarian. Our high school has a fairly extensive collection of VHS video tapes, which are only used by teacing faculty for use in the classroom, or to preview prior to a potential classroom situation. Most of these are so-called "educational" videotapes, of course. However, perhaps 10% to 15% are commerical VHS videotape -- for example, Zeferrelli's "Romeo and Juliet" film to be shown in an English classroom. I am guessing that perhaps 1/2 have macrovision, or some similar form of copy protection. I also suspect that about 1/2 do not. Many of these actually date back to the early 1980s. Early on, very few education film distributors were using copy protection. Now, of course, they all do.

I have been asked if it is okay to begin making the transition to digital video by backing up each and every one, and burning them onto a DVD. We know that the VCR's days are numbered. We also know our tapes' deterioration only gets worse.

I have read the summaries of TEACH, and at some points it seems to indicate that I can, but at other points it seems to indicate that I cannot. At one point, it sounds as if I can, but only for those tapes with no copy protection scheme.

All backups would remain with the same tight restrictions as the current VHS tapes --classroom use only, except a teacher who needs to preview prior to a showing.

All current VHS tapes would then be destroyed, since we do not have room to house them, anyway.

Any opinions as to the legalities of this, and whether it is legal only for the non-macrovision group, or for all of them?

Thanks in advance for any opinions.

-Bruce in Chi-Town

[Cornucopia]

What about resorting to the way DVD's were copied pre-DeCSS?
IIRC, the process would "play" the DVD out in realtime, using the standard, approved method of Decrypting the title, since it isactually playing it. It would then tap into the digital signal before it got to the display code.

Note the difference in paths...

[Current DVD Decrypting]
Encrypted DVD-->Decrypt Key search/match algorithm-->Copy Decrypted files

vs.

[Old DVD Decrypting]
Encrypted DVD-->DVD Playback "legally" decrypts title while playing-->Tap Decrypted signal to make copy

That sounds alot less like it's "breaking/bypassing" the CSS. What do you think?

Scott

[midimidi]

What about resorting to the way DVD's were copied pre-DeCSS?

Scott - I've never seen this technique before. Could you reference a URL describing it? Is it similar to feeding video from Premiere into TMPG Encoder?

Nonetheless - wouldn't Macrovision show up here?

I am in a similar, but not identical conundrum...

Bruce - one thing I'm not clear on...why make a copy of the tapes if you have them readily available for the classroom? From what I understand, its perfectly legal to play back any media in a classroom setting.

In the end, check out the DMCA. It very clearly states that if you are breaking any kind of protection - regional, CSS, macrovision - it doesn't matter what its used for, educational or not. You just can't do it legally.

A co-worker of mine made a great analogy to this whole discussion. You can cite paragraphs of a copyrighted work, and even mass-distribute and make money off of a product that uses such citing. Isn't that sort of the same thing?

It seems really really really dumb to me - IMHO, if something is in a controlled environment, is a very short snippet, and is used purely to teach and learn and make us think creatively, you should be able to do whatever you want with it. But at the same time, I think the mass duplication of media is a direct cause of the need to overly control it (and sometimes vice-versa!!). You may also argue (from a movie-maker's standing) that just like having to purchase and own a $50 Physics book, there's no reason why you shouldn't have to own a $10-$15 DVD - in my case, even the five DVDs presented might come to around $60. You don't see Mr Teacher ever making 30 copies of a Physics book do you? And just like the Physics book, you can always sell it used after the semester.

In the end - if you have any doubts at all, just don't do it.

[midimidi]

I have been asked if it is okay to begin making the transition to digital video by backing up each and every one, and burning them onto a DVD. We know that the VCR's days are numbered. We also know our tapes' deterioration only gets worse.

Sorry - missed this part. Again, it all just comes down to the DMCA. The movie makers would prefer that the library re-acquire the given films in their DVD digital form rather than redistribute them from VHS to DVD. From what I've learned, I would say this is probably illegal for those tapes that have macrovision. For those that don't, its probably OK.

[BSpielbauer]

>>>>>Bruce - one thing I'm not clear on...why make a copy of the tapes if you have them readily available for the classroom? From what I understand, its perfectly legal to play back any media in a classroom setting.<<<<

To clarify...

1.) there are those of us who think that the VCR's days are numbered. That soon, the hardware may become more and more difiicult to buy, and the costs may increase, and the choices may be rather slim pickens.

2.) Those VHS tapes are deteriorating. It would be nice to at least "freeze" them, or lock in the current video quality, rather than watch them sit on a shelf as the magnetic particles flake off, causing them to become more and more unplayable.

Yes, we can still use them today. However, this may not be the case 3 or 5 years from now. Again, the plan would be to back them up to DVD media, test each to make certain it was playable, and then destroy the VHS version.

The advantage, of course, is that we do not have to re-purchase these legally owned tapes, at considerable cost.

I now believe that this is legal to do for the non-Macrovision tapes, and probably illegal to do for any that have any form of copy-protection.

Thanks,

-Bruce

[Cornucopia]

I have been asked if it is okay to begin making the transition to digital video by backing up each and every one, and burning them onto a DVD. We know that the VCR's days are numbered. We also know our tapes' deterioration only gets worse.

Sorry - missed this part. Again, it all just comes down to the DMCA. The movie makers would prefer that the library re-acquire the given films in their DVD digital form rather than redistribute them from VHS to DVD. From what I've learned, I would say this is probably illegal for those tapes that have macrovision. For those that don't, its probably OK.

What if it's "out of print"?

This (backups/forward data migration) is the area where the letter of the law really is at odds with the spirit of the law. Maybe this will be decided in a case...

/Rant
Just another example of corporations breaking the "social contract"!
Doesn't anyone recognize "the public good" anymore?
/end Rant

Scott

[Cornucopia]

midimidi,

Macrovision on DVD is just a digital flag that tells whatever Analog video output device attached (if there is one) to "generate" the Macrovision signal in the blanking portion of the main signal. It doesn't exist per se in the digital world (although, if you output a DVD to a VCR, recording the Macrovision, and digitized that, you would see the effects of it).

re: old decrypting...

As most DVD player apps on PC's are built with Directshow components, think of it as a cascading series of filter decoder boxes, with the last one being the display.
All that is different is that the one after the decrypting box forks to include a file save tap, as well as the subsequent display boxes.

Well, maybe that doesn't describe it that well...

Scott

[midimidi]

(although, if you output a DVD to a VCR, recording the Macrovision, and digitized that, you would see the effects of it).

I'm not sure if this has been brought up yet, but what about just simply playing back a DVD on a DVD player and encoding its analogue output on a computer - i.e. like capturing any other analogue connection. Will Macrovision show up in this scenario?

[Cornucopia]

Most current "consumer/prosumer grade" capturing cards are legally "supposed" to have Macrovision detection on them, wherein they would act much like a VCR would and the AGC would kick in and you would get the usually brightscreen/darkscreen rollercoaster, and possibly sync problems as well.
This has been known to be hackable on a number of those cards. However, hacking MV detection out of the system pretty much puts you back in the "bypassing copy protection" grey area again.
If you're gonna go that route, you might at least do a rip and have a 1st generation, hi quality signal.

Scott

[midimidi]

OK - what is the correct legal method to be absolutely sure that a VHS tapes does NOT have Macrovision?

Is there a list someplace perhaps? It doesn't seem as if ignorance would be a legal excuse if a certain piece of retail hardware was removing Macrovision and X-copier didn't know it was.

[Cornucopia]

Well, the better prosumer and industrial/profession TBC's (Time-Base Correctors) combined with Digital Frame Synchronizers will usually strip out the vertical blanking signals and regenerate a fresh, new synthetic VBI signal on playback. This has the effect of providing a much more clean, stable picture for viewing/capturing.
It also has the (Wanted/Unwanted) side effect of losing whatever was incorporated in the original VBI.
This would include:
1. NTSC Closed Captions
2. SMPTE VITC Timecode
3. Macrovision-type copyguard signals (some, but not all)
4. Pro duper machine ID signatures
etc.

Now, if you're using a TBC (built into or downstream from a VCR) strictly for stabilization purposes, that is quite legal and routine practice at pro video houses. If you use it to strip copyguard, that is still considered going against the DCMA, AFAIK.

Scott