Legal question regarding backups

[ChaunceyK]

I know we have at least a couple of members here who work in law, so I'm hoping they can tell me if my understanding is correct on the following matters...

It is legal for me to make a backup of any copyrighted audio or video recording I have purchased (I can burn a copy for myself)

It is legal for me to make someone else a backup of any copyrighted audio or video they have purchased if they do not possess the technology to do it themself (If my aunt wanted me to backup a VHS to DVD or make a mix-cd, for instance, but didn't have a computer or a burner or anything to do it herself.)

...am I correct, and if so, can I charge a person for my time & effort since I am performing a service for them? Or does the law state that a person must make a backup themselves? I've written to RIAA and (not surprisingly) heard nothing back.

Thank you.

[yoda313]

I'd say the technical answer is no to all of the above - at least regarding US law - other countries have different aspects to the whole digital rights area.

I would say you can't charge to "burn backups" for others. If you are talking about backing up a persons computer hard drive who don't have burners thats one thing - that would be an IT type service. But specifically doing movies and music only I don't see that flying.

I think we all have the "personal use" concept for making personal backups understood. It may not be in the letter of the law but there is no policing agency that can go to every household and infiltrate and search for backups you made yourself. Just don't go about selling backups to friends or something - then you'd be in big trouble. But backing up your copy of the Simpsons or 300 wouldn't get you busted.

Just tred carefully and don't "advertise" this kind of service if you decide to go ahead and doit anyway. Watch your back

[ChaunceyK]

I certainly don't mean to offend, but is this just your take on the subject or do you have professional knowledge of this? Just want to be sure I understand properly.

Thanks again.

[yoda313]

that's my interpretation of all the legal proceedings over the years.

Do a net search for digital millenium copy protection act and you'll get all the legaleese you want.

[ChaunceyK]

Ugh...just glanced over it, can't make a lick of sense out of it! No thanks!!

[mats.hogberg]

IIRC, it's legal to make a personal backup, but it's illegal to circumvent any copy protection, so if the disk is copy protected (with let's say css) you're not allowed, even if you can.

/Mats

[dphirschler]

But that does not apply to Macrovision... does it? Say, in copying a VHS tape.


Darryl

[mats.hogberg]

Don't know really - but I wouldn't be surprised if VHS MacroVision is out of bounds too.

/Mats

[jman98]

I know we have at least a couple of members here who work in law, so I'm hoping they can tell me if my understanding is correct on the following matters...

It is legal for me to make a backup of any copyrighted audio or video recording I have purchased (I can burn a copy for myself)

In theory, yes, BUT there is a huge catch. Because of the DMCA, you may not legally be able to defeat Macrovision and you can't make a usable copy without doing so. It would require a court case to test whether or not you could legally do this. Macrovision, who is VERY litigious, would most certainly insist that you cannot and would fight you to the end of time over this since Macrovision on DVD is a lucrative source of income for them.

You would also have to defeat CSS, which again may put you afoul of the DMCA, but I don't know who is responsible for CSS.

It is legal for me to make someone else a backup of any copyrighted audio or video they have purchased if they do not possess the technology to do it themself (If my aunt wanted me to backup a VHS to DVD or make a mix-cd, for instance, but didn't have a computer or a burner or anything to do it herself.)

No previous court cases that I am aware of have ever held this action to be legal in the USA.

...am I correct, and if so, can I charge a person for my time & effort since I am performing a service for them? Or does the law state that a person must make a backup themselves? I've written to RIAA and (not surprisingly) heard nothing back.

Thank you.

Nope. You definitely can't charge and you are a grade A moron for contacting the RIAA about doing something they will NEVER, EVER approve of. Congratulations for letting them know that you exist, what your name and address are and that you might be contemplating doing something that they don't approve of. Perhaps in your case they will decide not to bother with you, but you never know.

[ChaunceyK]

lol...I never said anything to them about charging others, although I can see where you'd think I did...and if I had, then yes, I would indeed be a Grade-A Moron.

I simply meant I e-mailed them about the legality of making various types of backups for myself (mix-cd's, mix-dvd's for sporting events).

[videobread]

Ha! Ha! Ha! Every hear of the Digital Millennium Copyright Act. Everything is illegal in the US. The DMCA threw the Fair Use Doctrine, (Betamax decision), out the window. Does not matter if you are making a profit or if you are backing up a copy you paid for. All illegal. Even downloading DVD Decrypter is illegal in the US. Welcome to the brave new world of Fascist America! The upside is that "we the people" greatly out number them.

[postie1392]

HI folks,
just reading through this thread and thought i'd
ask if anyone out there knows what the legal possition is
in the UK.
it seems to me that if you have the legal right to back up
your audio and movie files and dvd's then surely anything that
prevents you from performing your legal right is, by definition,
itself illeagl?
strange thing, the US legal system.
But then so is the UK legal system.

Luv from the idiot postman from london

[guns1inger]

it seems to me that if you have the legal right to back up
your audio and movie files and dvd's then surely anything that
prevents you from performing your legal right is, by definition,
itself illeagl?

Naive view. Your legal rights come from the laws as written and interpreted by the judges who preside over the decisions. These laws are subject to alteration, adjustment, reinterpretation, extension or removal at the whim of the legislators. The DMCA, as restrictive and draconian as it is, does not remove all the rights under fair use. It does not remove the concept of fair use under law. It does, however, make it very difficult to apply under certain circumstances. It is however, not the worst of the copyright laws. The continual extension of ownership beyond the original intention of the copyright creators is far worse in the long run.

So what is law today may well be altered tomorrow.

[jagabo]

So what is law today may well be altered tomorrow.

Retroactively even.

[ChaunceyK]

Well...although my original questions have already been answered, I'll still throw in my opinion anyway, since this thread has really taken off.

Its ridiculous for any law to prevent me from making a full backup, a mix-cd, a or mix-dvd of stuff I've already purchased. Especially if I want to backup something from VHS (which degrades over time) to DVD (which lasts much longer). And another thought...isn't ripping to mp3 to put your music on an mp3 player considered "backing up"? How long until they make a movement to ban the mp3 player??

Its also ridiculous to not be able to have someone else make a backup for you if you don't have the ability to do it yourself, as long as its from stuff you've already purchased. You bought it, you should be entitled to do whatever you want with it for your own purposes.

I understand their fear of "Well, if they can make copies, they might sell them for profit & then we're losing sales", but they're losing exponentially more sales from the explosion of sites like Amazon, Half, and Ebay, who allow people to sell used stuff. Who wants to pay full price when you can get the same thing at the same quality for up to 90% off (depending on the popularity of the album/movie, of course)?? That's where they're losing the most sales, imo.

[guns1inger]

isn't ripping to mp3 to put your music on an mp3 player considered "backing up"?

Actually, no. It is referred to as 'Format Shifting', and until recently was explicitly illegal over here (Australia).

Whether or not a law is good, bad or indifferent is purely an issue of perspective. There are days when the laws that prohibit me from killing stupid people seem to be completely unreasonable.

[dphirschler]

My understanding is that format shifting is legal in the US... at least in regards to ripping a CD to mp3 and putting it on your player.


Darryl

[mrswla]

[quote="guns1inger"]

isn't ripping to mp3 to put your music on an mp3 player considered "backing up"?

Actually, no. It is referred to as 'Format Shifting', and until recently was explicitly illegal over here (Australia)./quote]

Isn't that the same thing you are doing when transferring a vhs tape to dvd? These laws are nothing but headaches

[ChaunceyK]

Seems like the same thing to me, but from what I'm gathering here, the difference is if there's a form of copy-protection in place THEN its illegal.

I dunno anymore...because laws aren't truly solid & are open to interpretation, they can pretty much decide whatever they want.

[MysticE]

Seems like the same thing to me, but from what I'm gathering here, the difference is if there's a form of copy-protection in place THEN its illegal.

I dunno anymore...because laws aren't truly solid & are open to interpretation, they can pretty much decide whatever they want.

The DMCA was written that way to avoid any 'Fair Use' issues. In the 321 case the decrypting part got them in trouble, they were allowed to continue selling the program (copy part) without it. I believe the Judge mentioned that if any Fair Use issues might be involved, it did not entitle you to a exact digital copy anyway.

[Video Head]

Major studios considered the VCR to be nothing more than a device invented to deny copyright holders their just dues. They fought in court to have time shifting (recording TV shows) declared illegal. A company named Sony fought to protect the rights of the consumer and to allow them to manage their own entertainment media. The courts ruled in favour of the consumer, opening the way for new technology development and business models (the studios did not think of distributing movies to play in VCR's, the adult movie industry came up with that model and Hollywood copied them). Today, nobody would think twice about using a PVR or HTPC to record a show to view later, but Sony might try to sneek a root kit onto your computer to find out what your doing....

[adam]

The Copyright Register has addressed the legality of backing up DVDs on three separate occasions and on each occasion they have determined that current Fair Use exemptions most likely do not cover it. The Register has suggested that until the Legislature expressly creates a law to exempt the practice, as was done with pc software and musical works, that it continues to be a copyright violation. This is true whether the DVD has any form of copy protection or not.

Here is an excerpt from the Registars opinion. I'd have to look around for the link to the whole opinion. Its hosted on the US Copyright Office's website somewhere.

The proponents of this exemption desire to make backup copies of their DVDs for a variety of purposes: they claim that DVDs are inherently fragile and subject to damage; they are concerned about loss or theft of the original during travel; they wish to duplicate collections to avoid the burdens and risks of transporting DVDs; they assert that some titles are out of print and cannot be replaced in case of damage; and they claim that the duration of a DVD’s lifespan is limited.

The common denominator in all of the comments endorsing an exemption for DVDs appears to be the need to make backups of the original copy due to the alleged fragility of the medium. The question therefore becomes whether making a backup copy of a DVD is a noninfringing use.

The creation of a backup copy of a work implicates the reproduction right. While the Copyright Act contains an exception for the making of backup copies of computer programs in §117, it contains no comparable exemption for motion pictures and other audiovisual works. The proponents of an exemption bear the burden of proving that their intended use is a noninfringing one. No proponent has offered a fair use analysis or supporting authority which would allow the Register to consider such a basis for the exemption, and the Register is skeptical of the merits of such an argument.
DVDs, of course, are not indestructible. Neither were traditional phonograph records; nor are CDs, videotapes, paperback books, or any other medium in which copyrighted works may be distributed. The Register is not persuaded that proponents of this exemption have shown that DVDs are so susceptible to damage and deterioration that a convincing case could be made that the practice of making preventive backup copies of audiovisual works on DVDs should be noninfringing.
The proposed exemption is not simply to permit remedial measures for disks which become damaged, but rather to allow reproduction of the works as a precautionary measure. While an analogy might be made to the basis for the backup exemption for computer programs that was enacted in the days of corruptible floppy diskettes, there are important differences. Congress carefully addressed the §117 exemption for backups of computer programs with restrictive conditions. One day Congress may choose to consider a carefully tailored exception for backing up motion pictures if it is persuaded that one is necessary, but the Register sees no authority under current law that would justify an exemption to enable the making of backup copies of motion pictures on DVDs. Given the tremendous commercial appeal of the DVD format at a time when alternative analog formats still exist, it seems unlikely that now is the time. And while it may well be true that analog formats are headed for ultimate extinction, the market is already beginning to see evidence of alternative forms of digital delivery over the Internet. The decision to purchase a DVD format entails advantages and, perhaps, disadvantages for some. The purchase of a work in that particular format is not, at present, a necessity and DVDs are unlikely to become the only format in which motion pictures may be purchased. The record in this rulemaking does not establish that the potential for possible future harm to individual disks outweighs the potential harm to the market for or value of these works that would result if an exemption were granted. The unauthorized reproduction of DVDs is already a critical problem facing the motion picture industry. Creating an exemption to satisfy the concern that a DVD may become damaged would sanction widespread circumvention to facilitate reproduction for works that are currently functioning properly. As presented in this rulemaking, the exemption would be based on speculation of future failure. Even though certain copies of DVDs may be damaged, given the ready availability of replacements in the market at reasonable costs, on balance, an exemption is not warranted on the current record.

The opponents have provided strong evidence of the increasing popularity of the DVD format. The Register finds it difficult to imagine that a format that is fundamentally flawed would become so popular. Similarly, it is difficult to imagine how a business model of renting DVDs, which also appears to be thriving, could be viable if the medium were so fragile. Further, it is significant that the scope of the problem the proponents describe is limited to movies on DVDs and does not address other types of works which commonly employ DVDs, such as video games. All these facts lead to the conclusion that, on the current record, DVDs are not unusually subject to damage in the ordinary course of their use. To the extent that some commenters found it more convenient to travel with backups or keep backups of their works in multiple locations, e.g., vacation homes or cars, the prevention of such uses appears to represent an inconvenience rather than an adverse effect on noninfringing uses. Indeed, the Register is aware of no authority that such uses are noninfringing. To endorse such uses as noninfringing would be tantamount to sanctioning reproductions of all works in every physical location where a user would like to use the work, e.g., the purchase of one book would entitle the user to reproduce copies for multiple locations. Except where a case-by-case analysis reveals such reproduction to be noninfringing under §107 or some other specific exemption, such reproductions of convenience are infringing under the Copyright Act. Neither the fear of malfunction or damage nor the conveniences enabled by backups satisfy the requirement that the intended use be a noninfringing one.

[Lord Flange]

If I obtain a legitimate copy of an audio CD or a DVD it seems to me that my rights to listen to or view it cannot be restricted to me personally only. ie surely I am not required to ensure that family members and friends cannot hear or see it by banning them from the room (or my car).

If that is the case, it seems to me that family members and friends acquire the same rights as I did. So what is the difference if I make copies for them to hear or view, cautioning them that it is not to be passed on to anyone else?[/u]

[Ai Haibara]

On a semi-related note, I saw this article today:
http://arstechnica.com/news.ars/post/20071002-sony-bmgs-chief-anti-piracy-lawyer-copyi...-stealing.html

[jagabo]

If I obtain a legitimate copy of an audio CD or a DVD it seems to me that my rights to listen to or view it cannot be restricted to me personally only. ie surely I am not required to ensure that family members and friends cannot hear or see it by banning them from the room (or my car).

If that is the case, it seems to me that family members and friends acquire the same rights as I did. So what is the difference if I make copies for them to hear or view, cautioning them that it is not to be passed on to anyone else?[/u]

Ask the judge.

[guns1inger]

If I obtain a legitimate copy of an audio CD or a DVD it seems to me that my rights to listen to or view it cannot be restricted to me personally only. ie surely I am not required to ensure that family members and friends cannot hear or see it by banning them from the room (or my car).

If that is the case, it seems to me that family members and friends acquire the same rights as I did. So what is the difference if I make copies for them to hear or view, cautioning them that it is not to be passed on to anyone else?[/u]

And what if the easiest way to get that copy to my friends is via the internet, perhaps through some sort of file sharing mechanism like bittorrent ?

And what if I have lots of friends ?

The judge is gonna love you (and so is Bubba - long time)

[fatbloke88]

if I recall our english laws take on the thing is that if you want a copy of your cd to play in the car you should buy a new copy and not burn a copy,that said everyone does it so it is tolerated,your even supposed to record or delete over the tv program that you've recorded once you have watched it as you dont hold the copyright(like that happens)

[oldandinthe way]

Welcome to America, where our legislators turn out reams and reams of laws each year which cater to the needs of their campaign contributors, our courts turn out even more case law to interpret the laws our legislators provide, and to complicate matters federal agencies add tons of regulations to implement the laws.

A vocal segment of elitist politicians insist theat "America is a Nation of Laws". While our constitution is dominated by limitations on government which if implemented would greatly reduce the amount of law we must contend with.

Both political parties are responsible for this situation. Until we find leaders who are true populists, and who will appoint judges who are strict constructionist, we will be mired in a situation where the requirements of our laws defy reason and logic.

[ChaunceyK]

On a semi-related note, I saw this article today:
http://arstechnica.com/news.ars/post/20071002-sony-bmgs-chief-anti-piracy-lawyer-copyi...-stealing.html

Well, I read this, and I feel its utter baloney. I bought it, I should be able to do with it what I want for *my* own purposes.

And as far as file-sharing being the sole reason for lost revenue, I know it has an effect on sales, but I still insist "used cd/dvd" sites like Amazon, Half, and Ebay are responsible for most of the losses. Its very obvious they'll never admit that, though, since there's nothing they can do to stop the sale of used stuff...but I do wonder how long it'll be before they make a motion that they're entitled to a portion of each sale, since they keep telling us that we don't actually own what we've purchased.

[postie1392]

It seems the law truely is an ass, regardless of where in the world you live