[CoLoCo] digital copies on Linux

[Jim Hutchinson]

On Mon, Jan 12, 2009 at 2:26 PM, Andrew <keen101 at gmail.com> wrote:

> Yeah, i don't think there is a law that gives people the right to have 1
> backup.
>
> I know when it comes to games some do let you have a backup, but that
> is in the license or EULA that comes with the game, and not every game
> let's you either.
>

Okay, lets clarify a few things. First, we have to go back to 1992 when
congress passed the Audio Home Recording Act (
http://en.wikipedia.org/wiki/Audio_Home_Recording_Act). Section 1008 reads:

"No action may be brought under this title alleging infringement of
copyright based on the manufacture, importation, or distribution of a
digital audio recording device, a digital audio recording medium, an analog
recording device, or an analog recording medium, or based on the
noncommercial use by a consumer of such a device or medium for making
digital musical recordings or analog musical recordings."

Basically, what this means is (from wikipedia) "Private, noncommercial
copies by consumers using "digital audio recording devices" are explicitly
protected by §1008. The Senate report defines noncommercial as "not for
direct or indirect commercial advantage", offering examples such as making
copies for a family member, or copies for use in a car or portable tape
player."

http://stason.org/TULARC/business/copyright/3-7-Can-I-legally-make-a-cassette-copy-of-a-musical-CD-for.html

So, there IS a law that states that consumers can make copies of their
legally purchased music. There is also a provision for this for software (
http://www.copyright.gov/help/faq/faq-digital.html#backup). While there is
no similar law specifically related to movies that I am ware of, the fact
that courts have allowed for time-shifting (the original betamax lawsuit)
and format shifting as well as personal, non-commercial backup copies under
the umbrella of "fair use" is the reason most reasonable people feel that it
is legal to make backup or archival copies for personal use or to format
shift so as to view at ones convenience.

The issue at hand concerns backing up movies since the passing of DMCA (
http://en.wikipedia.org/wiki/Dmca) which did not address copyright or fair
use specifically but simply made it illegal to circumvent copy protection.
Despite the existence of this law, there are numerous tools for doing just
that can be legally purchased all over the place. Some have gone to court
such as the Studio 321 case. In the end, they were prevented from selling
their software, but the court also said that their judgment should not be
construed to prevent the making of backup copies provided for under fair use
(
http://www.aprogrammingpro.com/2008/10/13/is-it-legal-to-make-backup-copies-of-dvds-you-own/).
The EFF's guidelines on what constitues fair use also support this (see
http://w2.eff.org/IP/eff_fair_use_faq.php section 4). In the 321 case it was
pointed out that

"As Judge Whyte of this District stated in Elcom: "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." page 13, line 19 of
news.findlaw.com/hdocs/docs/mgm/*321*mgm22004ord.pdf

One might interpret that to mean that it is not a violation of the DMCA to
circumvent for the purpose of a fair use backup but that no one can traffic
in devices primarily designed to circumvent. Wonderful double speak. I can
do it, but on one can provide me the software to do it (though they are
anyway so clearly DMCA is being effectively ignored for the most part -
until it isn't).

So, what I was trying to point out is that while DMCA prevents the
trafficking of devices designed for the circumvention of copy protection,
Fair Use has generally been upheld to allow for backup copies,
time-shifting, and format-shifting (like watching a movie on your iPod).
Therefore, this has resulted in a situation where the two laws (well
guidelines in the case of Fair Use) conflict. You can make a backup copy or
format-shift so long as you don't circumvent encryption which is hardly
possible now given all the DRM. However, despite the demise of Studio 321
plenty of tools to do this exist. I cannot speak about the leagality of this
other than to say some companies got into trouble but others are sill doing
it (here are several http://dvd-copy-software-review.toptenreviews.com/).

Sorry Paul, but I don't have the means to engage a lawyer to resolve this.
Hoewver, since courts continue to uphold Fair Use and allow for
format-shifiting, time-shifting and backups of legally purchased content it
may not be necessary to. If the music/movie industry felt they could flat
out ban backups they probably would. The fact that they haven't suggests
they fear that they would not win and the result would be a much clearer
statement about the legality of personal backups. Perceived uncertainly is
better for them then any clarification against them.

I'm not sure how any of this relates to my problem of watching my DVD on my
Linux box. I guess I'm allowed to do that but no one can provide me the
software to do it. And lawyers wonder why they are hated. And just to add
more confusion, lets not foget that I do own a DVD player that is licenced
to allow me to watch my DVD on my PC.

Mainly I just wanted to claify a few things and provide sources relative to
the vairous laws and cases surrounding this messed up issue.

See http://jcalcote.wordpress.com/2008/09/10/dmca-and-fair-use/ for another
take on this.

-- 
Jim (Ubuntu geek extraordinaire)
----
Please avoid sending me Word or PowerPoint attachments.
See http://www.gnu.org/philosophy/no-word-attachments.html
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