a question of copyright

[Wobblybob]

hi there

i've been re-reading the forum rules to see if this is in but not found it yet...sorry if i've missed it and it is there, but thought i'd ask and make sure before potentially breaking a rule

I totally understand your reasons for not allowing people to post regarding what may be considered illegally obtained copyrighted material, but what is your policy on movies recorded from terrestrial uk television using a tv card with onboard video...assuming you are allowed to keep a video back up of those movies, can i safely discuss this in the forums?

The main reason i ask is that my recorder prefers to record in uncompressed avi format and i'm having problems with the encoding process.

cheers
wb

[jggimi]

Yes, broadcast recording for "time shifting" or other personal use is considered Fair Use.

You can visit the HDTV / DVB / TiVo (http://forum.doom9.org/forumdisplay.php?s=&forumid=64) forum for digital sat broadcast capture information.

[keel]

I know these are real dumb questions, but I've been looking for hours on the forum for concrete answers, and have not found any. Assuming we purchased a legal copy of the DVD,

1. Is there still a U.S. law making it illegal to circumvent DSS for fair use purposes? If so, how are people getting away without being prosecuted?

2. Is there a U.S. law specifically allowing one to make backup copies of copyrighted DVD content, for personal backups, or for fair use purposes?

I really sympathise with all this forum stands for, but if I'm doing it for my company I need to stand on some legal ground.

[jggimi]

...if I'm doing it for my company...

Then no, Fair Use would not apply.

US Law varies depending on the format of the material. For works in digital form, the Digital Millenium Copyright Act (DMCA) applies. But there are no "gray areas" when it comes to business activity, even if the use is adjunct to your revenue, rather than direct.

You should be able to license your material for your company's purposes with nominal fees to the copyright holders.

For example, on behalf of my company, I've licensed music for events, and cartoons for presentations. In both cases, its been a fairly simple process and relatively inexpensive.

If the content you're interested in is movies or television, you should be able to obtain company information at www.imdb.com. For sports broadcasts, you will need both the permission of the original broadcast production company and the sports authority that licensed them.

For additional information, I strongly recommend you contact your company's legal department. We're not lawyers, and what we say cannot constitute legal advice. Follow theirs, instead. Corporate lawyers understand intellectual property rights; its what they manage for a living.

[EDIT: And my company has licensed excerpts from movies, primarily for sales kickoffs. So yes, movies are also licensable. But I was not directly involved in those transactions.]

[keel]

Originally posted by jggimi
...if I'm doing it for my company...

Then no, Fair Use would not apply.
Sorry, I should have been more specific. I'd be doing it for my private college, a non-profit educational organization. In education, fair use guidelines are often used to justify using portions of certain copyrighted works for the purpose of teaching students enrolled in your class (not the general public).

The new TEACH act http://www.lib.ncsu.edu/scc/legislative/teachkit/ expands and clarifies these rights.

So, would that change the answers? I would like to know if there is a law allowing circumvention of DSS for ANY purposes, but also more specifically for fair use.

My college does not hire attorneys to study these issues, they make us do it!

[jggimi]

"A complete understanding of any provision of the DCMA requires reference to the text of the legislation itself."From:

http://www.copyright.gov/legislation/dmca.pdf

Looks like you're going to have to do your own research. The TEACH act only covers performance and display.

[Neo Neko]

Originally posted by keel
I know these are real dumb questions, but I've been looking for hours on the forum for concrete answers, and have not found any. Assuming we purchased a legal copy of the DVD,

1. Is there still a U.S. law making it illegal to circumvent DSS for fair use purposes?

Yes. It is supposed to be illegal to circumvent *CSS*.

Originally posted by keel
If so, how are people getting away without being prosecuted?

I'll get to that in a bit.

Originally posted by keel
2. Is there a U.S. law specifically allowing one to make backup copies of copyrighted DVD content, for personal backups, or for fair use purposes?

I am not aware of any fair use "law". It is more a set of acceptable use guidlines. Unfortunatly there are no laws to protect it which is why it is in danger.

Originally posted by keel
I really sympathise with all this forum stands for, but if I'm doing it for my company I need to stand on some legal ground.

Basically in the US you have every right to make backups. Just that some times it is "technically" illegal. The largely unconstitutional DMCA says that it is illegal to bypass an "effective" security measure. CSS's effectiveness is highly debatable. Depending on your use you have little or no worries either way. BTW what is your use?

Anyhow. If the company owns the original coppies and only makes coppies for their own use then there is nothing to worry about. Say for use in an employee break room. Or perhaps in a dentists office etc. Where you could get in trouble is...
A) Mass distribution of unauthorised coppies.
B) Using the video as a profitable attraction for your business.

If you are not going to do either of those then you have no worries and how is anyone going to know. In case of B) there is a protection fee you can pay the cartells. Sports bars and electronics shops anually pay their yearly protection money. Even radio stations have a similar set up. Otherwise you then get in the situation of "Nice business you got here. It would be a shame if anything happened to it. Whoops!".

[jggimi]

For example, in the US, "time shifting" is considered Fair Use. Why? Because of a case brought before the US Supreme court, and because of the majority decision. There is no enacted law that you can cite, you must refer to the case.

http://www.theesa.com/fairuseopposition.html

[jggimi]

Keel,

You might consider asking the IP owners for unprotected excerpts for use under the TEACH act. They may be willing to oblige your request.

This would obviate the need to decrypt anything, and also avoid putting your institution at risk under any strict interpretation of current regulation or case law.

If you proceed as currently planned, you should at least advise your school's attorneys of your decisions as you proceed. They are likely to see risk where you do not. If you misunderstand or misinterpret comments here (or anywhere else on the internet), you may unnecessarily expose your school to litigation.

[EDIT: And, even if you FOLLOW advice found here or elsewhere, you may still cause legal headaches. We're not experts in law. And the majority of us are outside the US.]

[keel]

Originally posted by jggimi
Looks like you're going to have to do your own research. The TEACH act only covers performance and display.
Well, my posts here are part of my overall research, I have also spent many hours following up other sources! Just thought I'd see what I could find on doom9...

Incidentally, the TEACH act covers just about everything, including:
· Performances of nondramatic literary works
· Performances of nondramatic musical works
· Performances of any other work, including dramatic works and audiovisual works, in “reasonable and limited portions”, or what would be shown in a classroom
· Displays of any work “in an amount comparable to that which is typically displayed in the course of a live classroom session.” (It seems to me that if you would normally show the entire piece in teaching, the entire piece would probably be covered by TEACH.)

The only content explicitly excluded is:
· Works that are marketed “primarily for performance or display for instructional activities transmitted via digital networks” (to protect the market for commercially available educational materials.
· Performances or displays given by means of copies not lawfully made and acquired.

[keel]

Originally posted by Neo Neko
Basically in the US you have every right to make backups. Just that some times it is "technically" illegal. The largely unconstitutional DMCA says that it is illegal to bypass an "effective" security measure. CSS's effectiveness is highly debatable. Depending on your use you have little or no worries either way. BTW what is your use?

Sorry for calling CSS DSS! Posted late...but still shows I know little about it...

If it's not too much trouble, can you refer me to the law or interpretation of law that states it's legal to make backups of non-CSS DVDs?

After doing more research, it seems that it may not be legal to circumvent CSS under the TEACH act, http://www.usg.edu/admin/legal/copyright/teach_act.phtml

As our digitized streaming videos don't have to be "brodacast quality" for teaching purposes, I wonder if it's legal to just take the analog S-Video out of the DVD player and digitize that. I've had good results with that method.
Would it be considered circumvention of CSS? Apparently it's OK to digitize the same material if it was on VHS tape, but only the DVD may be available.

Thanks to you and jggimi for the feedback...

[keel]

Originally posted by jggimi
You might consider asking the IP owners for unprotected excerpts for use under the TEACH act. They may be willing to oblige your request.

If you proceed as currently planned, you should at least advise your school's attorneys of your decisions as you proceed. They are likely to see risk where you do not. If you misunderstand or misinterpret comments here (or anywhere else on the internet), you may unnecessarily expose your school to litigation.
We're not experts in law...

We don't have the staff to chase down each IP owner whenever the instructors rush in and need something on line in a week or two, so I was searching for general guidelines to try and accommodate them.

There is obviously a big gray area in copyright law, and any attorney would probably want to cover the school's butt (meaning his own) and come down with very conservative interpretations. In other words, don't ask the question if you can't live with the answer. If we go too far, it's easier to plead ignorance, take the materials off line, and put ourselves at the mercy of the IP owner. The issue then is how far one can go without attracting undue attention, or be made into an example. On the other side of the coin, I have requested legal advice several time, and been told to just see what other schools are doing.

I realize yours are not legal opinions, but if you spent any time working at smaller higher-ed institutions, you'd be surprised at how few of them have professional legal advice regarding copyright and put themselves at risk. We kind of follow each other around in a herd and hope not too many get picked off!

[jggimi]

...If it's not too much trouble, can you refer me to the law or interpretation of law that states it's legal to make backups of non-CSS DVDs?...

If you take just a moment to Google with keywords like "legal backup intellectual property" you will find all sorts of interpretations, in all sorts of jurisdictions, for all different sorts of IP. And we're only talking about what's readily available from Google. A law firm with access to LEXUS would be much more helpful. Or a law school with the same access. Does your school teach law?

Your institution has legal counsel. I do not understand why you or your administration would hesitate to inquire.

[keel]

Originally posted by jggimi
If you take just a moment to Google with keywords like "legal backup intellectual property" you will find all sorts of interpretations, in all sorts of jurisdictions, for all different sorts of IP. And we're only talking about what's readily available from Google. A law firm with access to LEXUS would be much more helpful. Or a law school with the same access. Does your school teach law?

Your institution has legal counsel. I do not understand why you or your administration would hesitate to inquire.

Thanks for the suggestions. We were told to do as much research as possible on our own. I figured with the claimed 65,000 doom9 members, many of which seem to be interested in, or are performing, DVD copying, I would get some useful feedback.
As I mentioned, I am also looking into several other directions, and don't expect to be spoon-fed simple answers.
You would be surprised how very few small colleges have legal counsel in copyright law.
Once we formulate our policies, I'm going to push to at least have them verified by an expert though. It often seems easier for administration to "ride on the coattails" of another institution's verified findings, in our business.

[jggimi]

Remember, what you are asking about is not backup, it is copy. Like a photostat of a written work.

You are also asking about use which doesn't fall under any reasonable definition of personal.

And lastly, you are asking US legal questions in a EU-based technical forum.

Your counsel may not be expert in copyright. But they do know intellectual property, and they can certainly seek outside opinion.

[adam]

I work in an intellectual property lawfirm and I specialized in Copyrights in Law School. I am also the Audio/Visual Director for a large non-profit charity and frequently make use of copyrighted material through the charitable and Fair Use exemptions. I'm sorry, but there is a great deal of incorrect information in this thread.

Despite its name, the DMCA covers both digital as well as analogue sources and protection measures.. In making the circumvention of certain technological devices a violation, it does not distinguish between digital or analogue sources, and under section 1201(k) it imposes numerous restrictions on manufacturers of analogue playback devices, namely in the area of Macrovision protection. The DMCA got its name because its enactment was prompted due to the advances in digital technology (aka, new ways to violate copyrights) but it applies generally to all protected works.

The "effectively controls" language of the DMCA is defined under section 1201(a)(3)(B) and it has nothing to do with how well the protection works, but rather how it works. To "effectively control", the technological measure must, "require the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." So CSS protection would definitely qualify, even though a monkey could circumvent it.

Yes it is possible to circumvent CSS protection without violating any law, as long as it qualifies as a Fair Use act or is otherwise exempted under Title 17. Section 1201(c)(1) of the DMCA states, "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." If it is Fair Use, then you have an affirmative defense to both copyright infringement as well as the DMCA. You could, for example, bypass CSS to extract a short scene from a movie for the Fair Use purpose of parody or critique.

The Fair Use doctrine dates back to common law, but it has been codified into Copyright Law. The Fair Use provisions are found in 17 USC 107, and they are mandatory persuasive law, but they are not exclusive.

So what does all this mean in regards to DVD backups? Well its best to start from the beginning. 17 USC section 106 grants several Exclusive rights to copyright holders, including the exclusive right to make reproductions. That right there makes DVD backups, or any other backups a violation per se. So the only way any backup can be permissible (assuming the copyright holder doesn't waive any rights) is if some provision in Title 17 creates an exception (caselaw on Copyrights can only construe Title 17, it cannot create new law itself.) In other words, all the answers lie in Title 17.

Section 107 (Fair Use) allows for archiving of broadcasts for a one time later viewing, (Time-Shifting does NOT allow you to keep the copy indefinitely; once you've watched it you're supposed to erase it.) It also allows for partial copying for various reasons, but does not otherwise allow you to make a complete copy generally.

Section 108 allows certain archival backups for libraries.

Section 117 allows for archival backups of computer software under certain cirumstances. (ie: essential for utilization of software in conjunction with a machine)

Section 1008 allows archival copies of digital or analogue musical recordings. (ie: CD->CD, CD->Mp3)

That's it, there is no provision for archival copying of DVDs and through caselaw, the above mentioned exceptions have ruled out application to DVDs. That leaves Fair Use. The codified language in the Fair Use provisions of Title 17 clearly does not apply to DVD backups, but like I said they are not exclusive. But in order for the Fair Use doctrine to otherwise be applied to DVD backups, it would have to be raised and ruled on in a court of law. This simply has yet to happen for obvious reasons; it is not cost efficient for a copyright holder to sue someone for making archival copies. So it is extremely inaccurate to say that it is legal to make DVD backups, or that Fair Use, in any way, governs this whatsoever. Until a court actually carves out an exception to the general prohibition of unauthorized reproductions, it is still an infringement and at present, Fair Use is completely silent on this issue.

So the correct statement is that there is a very strong Fair Use argument. In other words, IF someone were ever sued for this, they may be able to successfully plead Fair Use as an affirmative defense. But until that happens, copying a DVD strictly for archival purposes is per se a violation of copyright, and if it contains CSS protection then it is further a violation of the DMCA. And then there's that ridiculous catch-22 that will eventually have to be cleared up; if you bypass Macrovision you violate the DMCA but if you leave it intact you infringe on Macrovision's patent. Now I hope no one takes my post as an approval of these facts, I'm simply stating what the law actually says on this matter as I interpret it.

So with that out of the way (sorry), I would suggest to keel to go straight to the source. The TEACH Act is an amendment to sections of Title 17, and an old one at that. Personally I find it much easier to just look at what the law says now rather then look at what an individual act changed in the past. For all you know, affected sections have been amended since. That site you posted also has alot of typos and a few mistakes, so take its information with a grain of salt.

The Sections you need to look at are 107 and 110 of Title 17. (http://www.access.gpo.gov/uscode/title17/title17.html)

If the DVD has CSS protection then you are out of luck under the express exemptions of section 110. Playing it on a DVD player and recording it to an analogue medium is still a circumvention, and this specific act was generally made impermissible anyway under section (k) of the DMCA. If an analogue or CSS free digital source exists, you need to use that. You may still be able to bypass CSS protection under section 107 (Fair Use) but it will depend on how the courts in your jurisdiction have ruled on this issue. If you tell me what state you are in I may be able to check on this for you.

If you know a work is copyrighted it is best to just formerly request permission to use it off the bat. You never know. If you do decide to proceed with copying, asserting a Fair Use right to do so, make sure and fill out this document for each source you copy. http://www.lib.ncsu.edu/scc/copyright/worksheet.pdf This should, at the absolute least, protect you from any potential criminal liability in the event that you or your institution is sued.

[jggimi]

Thank you, adam, for your corrections, clarifications, and opinions. They are deeply appreciated.

[keel]

Adam, thank you so much for your detailed analysis. It is amazing how confusing all this stuff is. I even went to an all-day seminar on copyright a few years ago, but still often have not "gotten it". Your well-organized response helps a lot.

There seem to be very few public sources where all these different acts, case laws, etc. are integrated into accurate and understandable guidelines regarding what you can and cannot do. We often "fly blind" and hope for the best. Many colleges just follow each other, as I mentioned, like a sheep herd...a kinder description might be safety in numbers...

It obviously took a lot of time to formulate your thorough answer, and it is very appreciated. Now I have to digest it all, and do some more research. This forum is great, out of all its members, I figured someone would know what they're talking about!

[adam]

If you are looking for a primer of sorts on copyright you most likely are not going to find it via google. See if you can get your institution to pay for a transactional account for either LexisNexis or Westlaw. Anyone can subscribe for one of these and the prices are reasonable. You can find some good law reviews which will really break down Title 17, but what you really need to look at are the Mathew Bender reports by Nimmer. Their names all start with "Nimmer on Copyrights." These are regarded as the foremost authority on copyrights and they are really easy to follow. If you ever need a thorough, non-biased intrepration of a particular intellectual property lawsuit then you should look it up in the Measley Reports.

You should also read the Committee Notes for any provisions of Title 17 that you need clarification on. The legislators give a great deal of insight into what they really intended to do when they drafted all that legalise that you actually see in the statutes. You should also be able to find Committee Notes on some free sites. Some of the Committee Notes are referenced in the link I provided in the previous post, but there is more then just that.