When does 'backing up' become piracy?

Discussion in 'Archived Threads 2001-2004' started by BenjaminG, May 30, 2002.

  1. BenjaminG

    BenjaminG Stunt Coordinator

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    Ok. I have acertained that it is all above board to 'backup' a VHS or laserdisc onto DVD-R, for personal use only.
    Now say that I have a VHS movie. Is it legal to obtain a copy of someones elses laserdisc backup of the same movie, as I have it on VHS, or can I only backup onto the media I originally have it on?

    I'd be very interested if someone could shed some light on this as I have been wondering about this for sometime now.

    Thanks


    (EDIT: Fixed spelling!)
     
  2. Jeff Kleist

    Jeff Kleist Executive Producer

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    As long as you won a commercial, legal copy of all materials being transferred you are good
     
  3. Ricardo C

    Ricardo C Producer

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    I'm not sure "trading up" is legal... If I own the Beatles catalog on LP (which I do), is it legal for me to obtain copies of the CD releases?

    If that were the case, then people would be entitled to copy DVD versions of movies they own on VHS. Last I checked, that was piracy.
     
  4. Kevin M

    Kevin M Producer

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    Well............that's a tricky question now isn't it? I would think the answer is No because the DVD copy isn't from The original video format that you bought & own, is it? It's from someone else's.
    Irregardless, this is a discussion of piracy so it might be a good idea to bring it up outside the Forum.
    You know?
     
  5. BenjaminG

    BenjaminG Stunt Coordinator

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  6. Jeff Kleist

    Jeff Kleist Executive Producer

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    I believe questions like this, especially when they're about AVOIDING piracy are permissible. Mods feel free to correct me

    I believe this is the case


    If you have a P&S tape and make a copy of a widescreen LD, that would be piracy, as it's not the same product. But widescreen to widescreen shouldn't bea problem.
     
  7. Ricardo C

    Ricardo C Producer

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    Gotta disagree again, jeff. It's not just a matter of the content being copied, but of the medium it is being copied from.

    I have Queen's "A Night at the Opera" on CD. That doesn't entitle me to copy the DVD-A version and call it a "backup." If you own the OT on VHS, then VHS is all you can legally copy to DVD-R.
     
  8. Kevin M

    Kevin M Producer

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  9. Kyle McKnight

    Kyle McKnight Cinematographer

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    Like Ricardo is saying, if you own a certain work of art, we'll call it 'x', on one format, you can transfer it to other formats as long as you use it for your source material.
     
  10. Michael St. Clair

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    Gotta love the grey areas.

    Let's say I've got a laserdisc worth $200 or $300. So I want make a DVD-R as a backup, in case the original rots or something. No big deal, right?

    Well, what if I put the disc in to make the backup, and I find the disc is already rotted to hell! Is it OK to borrow and use somebody elses rot-free laserdisc to make my DVD-R?

    Like I said, gotta love the grey areas.
     
  11. Steve_Ch

    Steve_Ch Supporting Actor

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    >>That (to me anyway) is like justifying sleeping with someone else's wife simply because you have a wife also!
     
  12. Ricardo C

    Ricardo C Producer

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    Michael, I'd say yes. You paid for the laserdisc, and it went bad. If you get a copy of someone else's laserdisc, all you're doing is restoring the copy that was supposed to last a lifetime to begin with. No one made or lost money in the process. So, assuming the copy you got was of the same set as the one that rotted, I think you'd be in the clear.

    What I think is definitely ilegal is obtaining the backup from a superior source to the one you own.
     
  13. Kevin M

    Kevin M Producer

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  14. Ricardo C

    Ricardo C Producer

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    Well, I don't know much about the LD market (I bought the Star Wars trilogy sets and that was it), but in the computer software one, if your CD of any given program is damaged (even by your own carelesness), you can order a replacement disc from the manufacturer. In most cases, they charge a small nominal fee, and ask that you mail the damaged disc, if I recall correctly. Since LDs are no longer being manufactured, and thus it's impossible to try to get a replacement set from the manufacturer, making a copy of a set identical to the one that rotted shouldn't be a problem.
     
  15. Chris Bardon

    Chris Bardon Cinematographer

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    There's the problem with trying to apply logic to legality-it just doesn't work. I guess it comes down to what fair use of the information is defined as. Realistically, if you're arguing that making a backup from your own VHS tapes is legal, then why would a backup from someone else's LDs not be? They both contain the same film, and your purchase price was for the content, not the medium.

    Realistically though-will anyone really care if you do? You'll have lawyers that'll argue that having two people watch the same DVD is illegal, so it comes down to what you think is right, and how "grey" you're willing to be.
     
  16. Kevin M

    Kevin M Producer

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    Yeah...but it isn't from the studio that you are getting said copy and most importantly it isn't your video that you are copying, it is a video that someone else paid for. No matter what personal agreement you two might have, from a legal standpoint you are getting an illegal copy of someone else's legally bought video.
    It's not really a grey area as much as it is fairly simple concept, you are copying someone else's video for your (not his) use. No matter whether you have a similar copy yourself, it isn't your video that you are copying, it is someone else's. That is illegal.
     
  17. Ricardo C

    Ricardo C Producer

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  18. Damin J Toell

    Damin J Toell Producer

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    There's a lot of confusion here, and, I think, moreso than need be.

    First, the simple stuff. The only place in the actual U.S. Copyright Act that allows for the creation of personal backup copies of copyrighted materials is for computer software. There is no statute that makes it legal to make personal backups of music or movies.

    So where might such a right come from, if at all?

    But before that, some further explanation. A term that often gets misused in these sorts of discussion (although, thankfully, not here so far) is "fair use." There often seems to be a misconception that fair use is a certain explicit set of standards of exceptions to copyright law. It isn't. As codified in 17 USC § 107, fair use is a non-exclusive set of considerations for courts to weigh in finding a certain activity to be an allowable exception to the rights granted under the Copyright Act.

    So how does that help us here? At least one U.S. Court of Appeals, the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, and WA), has explicitly held that making personal backups of music (specifically, from CD to mp3) is allowable under fair use. See RIAA v. Diamond, 180 F.3d 1072 (9th Cir. 1999) (concerning the application of the Audio Home Recording Act to Diamond's Rio Mp3 Player). It's very important to note that while this case currently stands, it is only the law in those states that I listed as being within the Ninth Circuit. And while other courts have cited the Diamond case, I don't know of any other Circuit that currently explicitly holds that backing up CDs (or other media) is fair use. For it to become "the law" in the U.S., it would need to be explicitly held by the U.S. Supreme Court. This will probably never happen, as the Supreme Court has pretty much only decided four fair use cases since the implementation of the 1976 Copyright Act.

    So what does this mean? Odds are that creating backups of your own personally-owned media (music, movies, books...?) is allowable under fair use.

    However, borrowing someone else's media and copying it is a whole different can of worms. I would think that a court would be much less willing to hold that copying is allowable of someone else's media by virtue of the fact that you also own a copy of that media. Not only would you be violating the reproduction right granted by the Copyright Act, your friend might also very well be contributorally liable for knowingly allowing such copies to be made. It's rather important to note that Napster raised fair use as a defense in their case (specifically, in their defense against the petition for a preliminary injunction). The court there, once again in the Ninth Circuit, held that even though some users were merely using lawfully made backups as in Diamond, the activity was unlike Diamond in that it resulted in distribution of copies. So, while getting a copy from a friend and reproducing that copy is unlike both Diamond and Napster in many ways, it's my intuition that a court would be more willing to treat it as being in the Napster line. I think that a court would be quite unwilling to hold, as a general matter, that making copies of someone else's media is a lawful activity, even if the copier also owned a different copy himself. Holding otherwise would, in effect, be granting a person a lifelong right to gain access to new copies of a work by virtue of having bought it once. Courts would be unwilling to allow this as it would harm the market of copyright owners to resell works to consumers once a given media has worn out, broken, or become otherwise unuseable or inaccessible. It may not be what a lot of people want to hear, but buying a copyrighted work does not give you a lifetime license of access to that work; it merely gives you that copy itself. In the current consumer world of media formats that do not last forever (insofar as they either unavoidably decay over time or that they are breakable), the resale of copyrighted materials to previous owners is a valid and important market. I'd be quite surprised if a ruling in disagreement with this sentiment that went beyond the simple case of backups of personally-owned copies lasted very long in the appellate process.

    I hope some or all of that made sense.

    None of the above, of course, is meant to constitute legal advice.

    DJ
     
  19. Damin J Toell

    Damin J Toell Producer

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  20. Steve_Ch

    Steve_Ch Supporting Actor

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    I thought the "fair use" issue as apply to recording to taping one's own record/cd was decided long time ago, the digital duplication, such as MP3, is a new twist, no ?

    I have not been following this, but did the MP3.com "beaming" (if you have legal proof that you own a piece of music and register it with MP3.com, you can "beam" that music from MP3.com to any device you have) issue ever get resolved ?
     

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