posted
Here's a question I was just thinking about. Let me stress before I ask that it's only theoretical. I'm not in this position, nor do I expect to be. None of my friends are in this position. I'd just like a theoretical answer, from either a legal or ethical perspective.
Okay, if I buy a CD, I have the right to make a backup copy of it. If my CD gets lost, stolen, put in the microwave, or trodden upon, I can listen to my backup copy.
What happens if I forget to make a backup copy of a CD, then it gets lost or destroyed. I tell my friend about it, and he happens to have a copy of the same CD. I did buy it legally. Can I make a copy from my friend and use that as the backup copy that I lacked the foresight to make in the first place?
Posts: 127 | Registered: Aug 2004
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posted
I actually don't think this one has been tackled in the courts at all before, its just too much effort for a case with no judgement possible to speak of and a lot of bad publicity for copyright holders.
In other words, it may or may not be legal (or may just fall into the big "undetermined gray zone" of fair use), but its almost certainly allowed (its not enough for criminal prosecution, so enforcement depends on the copyright holder, and the motivation to start a suit over such is extremely low).
Posts: 15770 | Registered: Dec 2001
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posted
I have made it a habit, that every time i go out and buy a CD, which has been a lot lately, I take it home and burn a copy. The burnt copy goes in my car, where i can be a reckless as i choose. If i break the CD, or it gets scratched, I can just burn a new one from my copy that is sitting safely in its case back home.
The only thing about this plan that might not be legal... is that if Im listening to the CD in the car, and a friend is liking it, then I usually will give them the copy cause I can just burn a new one when i get home
Posts: 879 | Registered: Aug 2000
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posted
I make sure I rip all of my CDs (and buy all that I possibly can) on iTunes to avoid this kind of problem.
Posts: 2292 | Registered: Aug 2003
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posted
I'm pretty certain you're wrong, adam. Fair use is an acceptable reason to break copy-protection, so it doesn't matter whether copy protection exists or not.
As partial proof, I quote the DCMA (which is what criminalized certain instances of breaking copy protection):
quote:Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
So all that matters is whether or not it is fair use, regardless of copy protection.
Posts: 15770 | Registered: Dec 2001
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posted
You're misunderstanding. That case if anything reinforces my view -- note that the judge pointed out the software could be put to legal uses.
The problem was the distribution of software that could be used to break copy protection in illegal cases, which is separate from the case of independently breaking copy protection for fair use purposes.
posted
Now you're contradicting the very thing you quoted:
quote:Legal downstream use of the copyrighted material by customers is not a defense to the software manufacturer's violation of the provisions (of copyright law).
quote:It asserts that many uses of the software do not implicate the DMCA at all, as they do not involve accessing CSS; do not implicate copyright infringement, as they involve making copies of DVDs that are in the public domain; are fair use of copyrighted materials; or involve making a single, archival backup copy of a movie that the user has already purchased, which is authorized under copyright law. However, the downstream uses of the software by the customers of 321, whether legal or illegal, are not relevant to determining whether 321 itself is violating the statute. As Judge Whyte of this District stated in [**29] Elcom: HN19Go to the description of this Headnote."Congress did not ban the act of circumventing the use restrictions. Instead, Congress banned only the trafficking in and marketing of devices primarily designed to circumvent the use restriction protective technologies. Congress did not prohibit the act of circumvention because it sought to preserve the fair use rights of persons who had lawfully acquired a work." emphasis added
321 STUDIOS, Plaintiff, v. METRO GOLDWYN MAYER STUDIOS, INC., et al., Defendants. AND RELATED COUNTERCLAIMS, 07 F. Supp. 2d 1085
Unfortunately, I can't post more or provide a link because of copyright restirctions.
quote: Depends. If the CD was copy-protected, it isn't legal to make a backup copy, so if the CD is destroyed, you need to buy a new one.
If the CD wasn't copy-protected, it probably isn't legal to make a copy from your friend, but it's certainly ethical to do so (in my not-humble-enough opinion).
posted
how do these not contradict each other? You:
quote:If the judge had the view that there were legal uses for the software, a permanant injunction preventing the distribution of the software would have been completely unjustified.
The Judge:
quote:Legal downstream use of the copyrighted material by customers is not a defense to the software manufacturer's violation of the provisions (of copyright law).
(I am assuming you do not think the judge completely unjustified).
And Dagonee's quote bears out my position that it is okay to break copy protection in cases where it would be okay without the copy protection -- in fact, it pretty much explicitly states the central parts of that:
quote:Congress did not ban the act of circumventing the use restrictions. . . .Congress did not prohibit the act of circumvention because it sought to preserve the fair use rights of persons who had lawfully acquired a work.
posted
No, it only talks about distribution of possible means. If you can do it with, say, household items (using a marker around the edge of a CD works with some copy protection, for instance), its perfectly okay.
Posts: 15770 | Registered: Dec 2001
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quote:it just prohibits any possible means of making copies.
It prohibits trafficking in means whose primary purpose is to circumvent the copy protection.
If I'm reading this case right (*NOT A LAWYER DISCLAIMER*) it would even be legal to write software to crack it, just not to distribute such software. "Primary use" is one of those phrases that will still be being defined by courts when we move on to protein-based digital storage.
It may not even be illegal to buy the software, just for 321 to sell it. There are many stranger things in the law.
quote:What happens if I forget to make a backup copy of a CD, then it gets lost or destroyed. I tell my friend about it, and he happens to have a copy of the same CD. I did buy it legally. Can I make a copy from my friend and use that as the backup copy that I lacked the foresight to make in the first place?
No. Not until labels start selling individual licenses like software companies do.
Posts: 1839 | Registered: May 1999
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quote:I'm not a lawyer either, but the impact of this decision was explained to me by a second-year student at one of the top law schools in the country
Then I have the same credentials he does.
quote: I would agree with your reading of this case if the DMCA didn't say:
quote: -------------------------------------------- (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. --------------------------------------------
This case is a test of the DMCA provision on trafficking; it doesn't touch the provision on circumvention in the first place, which is what I quoted here.
You gotta quote the whole section (or at least subsection). Emphasis added:
ยง 1201. Circumvention of copyright protection systems
(a) Violations regarding circumvention of technological measures. (1) (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter [enacted Oct. 28, 1998]. (B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C). (C) During the 2-year period described in subparagraph (A), and during each succeeding 3-year period, the Librarian of Congress, upon the recommendation of the Register of Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the Department of Commerce and report and comment on his or her views in making such recommendation, shall make the determination in a rulemaking proceeding for purposes of subparagraph (B) of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph (A) in their ability to make noninfringing uses under this title of a particular class of copyrighted works. In conducting such rulemaking, the Librarian shall examine-- (i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate. (D) The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period. (E) Neither the exception under subparagraph (B) from the applicability of the prohibition contained in subparagraph (A), nor any determination made in a rulemaking conducted under subparagraph (C), may be used as a defense in any action to enforce any provision of this title other than this paragraph. (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. (3) As used in this subsection-- (A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
posted
I must say, I am impressed that you are ethical enough to be discussing this. It seems that it is nearly common practice recently to find a friend who's bought an album that you like and have them burn you a copy rather than buying your own, and this really irks me. I even saw a used CD store with a sign out front, saying "buy it, rip it, sell it back."
Way to go, Hatrack boys. Posts: 8504 | Registered: Aug 1999
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posted
I can keep naming ways of defeating copy protection that are legal -- for instance, some copy protection uses the autoload capability of your OS to load some protective software. Turning of autoload eliminates the copy protection.
Or then there's defeating the copy protection by hooking directly up to the audio stream to the speakers and redirecting the digital output to a file, then converting it to your format of choice.
We could always talk about the copy protection on VHS tapes, which may be defeated by putting a small sticker or piece of tape over the hole.
And there's tons more.
Plus, you're apparently not familiar with the DeCSS case. Its perfectly legal to distribute the source code for decoding DVDs, you just can't do it in certain formats. You can, however (and for instance) put it on a t-shirt (among other things) and distribute the t-shirt. So you could just acquire one such t-shirt (they're for sale all over the web. coffee mugs, too), type out the code, then compile it (its slightly more complicated, but not much). Ta-da, DVD decryption!
Posts: 15770 | Registered: Dec 2001
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posted
adam, I didn't write that post to say it was legal but to illustrate how much more there is to such an issue than one line from a staute. You're right, we'd have to do research into the Library of Congress's rules on this. Go to law school - you've got good instincts for it, and the first thing you learn there is how to go 10 layers deeper into an issue. There's no instinct for that - you have to learn it.
fugu, that was a great case - source code as speech, with First Amendment protections.
Someone rewrote the routine so the source code was a prime number, making it illegal to send that prime number to someone in electronic form.
Of course, it doesn't quite work that way legally, but it was a funny joke nonetheless.
Essentially, a judge has ruled that file-swapping services Grokster and StreamCast are not liable for the content being traded on their services.
I know this differs from the original post about making copies of discs that we own for our own use and about replacing damaged backups, but I thought everyone might be at least mildly interested.
posted
AHRA-ok: minidisc, DAT, "music" CDRs. A royalty fee is built into the media price. The SoundEx consortium that supposedly distributes these fees to artists is corrupt as hell, but on the plus side they can't stop you from copying things you own. (You MUST own them. The contractual terms of the proposed store must treat all transactions as final; IANAL, but I would suggest making the buyback price noticeably lower than what would be strictly necessary for a wink-wink rental service's margins.)
Not ok: hard drives, "data" CDRs, any other general-purpose medium as defined by the 9th Circuit Court in the early 90s.
Posts: 1839 | Registered: May 1999
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posted
adam, only go to law school if you want to be a lawyer (or law professor). I know people who go thinking they'll "Do something" with it later. The JD is a lot of work and it prepares you to be a lawyer.
Naturally, there are many different kinds of lawyers - litigators, transactional, and a million shades in between, with specializations that mirror almost every aspect of law. But there are better ways to expand your mind than a legal education. It's a trade school.
Oh, and free Lexis and Westlaw is an insurmountable advantage in these discussions.
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