yes, yet another copyright question, but very specific

I have a client who has some aging training videotapes they purchased,
some are no longer available. they have asked if those tapes could be
re-formatted to DVD in order to preserve them for continued use.

I believe that I can, for example, take a music CD and make an analog
tape of it for my own use. I'm wondering if this same exception would
apply in the case I cited above?

Any thoughts?

Thanks!

 

The truth is out there....

You may get varying opinions on this issue, which is surprising in some
respects, since there is a law, after all.

I would argue that since your client has paid for the right to use this
intellectual property, you are certainly entitled to make a copy of it
in order to permit continued access to the right they have already paid
for.

Some of the big corporations will try to tell you that you have to pay
for the right to make a copy, or to put it onto a different format. I
think they are wrong, but that's just my opinion. I also happen to
think that nobody can be punished for something they might do, but Texas
has proved me wrong about that, so I'm not entirely confident anymore.

To stay within the spirit of the law, the DVD copy should only be
available as a replacement or substitute for the VHS copy, which should
no longer be used.

 

Your client owns the tapes. It is perfectly legal for them to make copies
for their own use. Don't even give it a second thought.

 

I am not a Lawyer. Consult yours before doing anything that might have
serious consequences.

That said, I _am_ a businessman; and it seems to me that your decision is
a business decision, not purely a legal one.

Here's what I mean :

It seems to me that the damages are small, even if what you plan to do is
eventually deemed to be wrong. As I understand it, here's what would have
to happen for you to incur any penalty : 1) You'd have to do the job. 2)
The copyright holder would have to find out about it. 3) The holder would
have to determine that they were damaged in an amount large enough to make a
lawsuit worth their time and trouble. 4) The holder would have to
determine that you had deep enough pockets to go after you. 5) They would
have to actually bring the suit. 6) The court would have to rule against
you and attach your assets.

 

I'm not a lawyer either, one does frequent this NG, but here's my
thought anyway.

There is no question that your client as the right to copy his
legitimately acquired material for his own use, recent lawsuit against
321Studio have established that fact I think. But what you suggest is
that you would take that material and copy it then give it back to him;
I wonder if that would not qualify as "distribution" which is clearly
illegal. As I'm not a lawyer, I won't argue that point, but here's what
I would do:

Since you're probably thinking of doing this as a favor to a good
client, as I can't see much money coming from such work, I would use the
possible copyright infringement argument to weasel out of the
"assignment"; and then I would, as kindly as possible, point him to his
nearest electronic store to buy a DVD recorder (they're cheap now) with
which he could, easily and with speed, digitize his whole video
collection from the comfort of his home and in total legality.

 

I write and write and write, and no one reads any of it!

Okay, I can't give specific legal advice and, in any event, I'd need to know
a lot more about the specific circumstances surrounding the creation and
acquisition of these tapes to give an opinion. However, some general
points:

1. Ownership of the physical tapes does not result in ownership of the
intellectual property contained in the tapes. The right to make copies is
one of the rights reserved to the copyright owner, i.e. just because someone
owns physical copies of a video does NOT mean that they can make copies.

2. There is NO right to make backups of videos. The only statutory back-up
exception is with respect to computer programs. An interesting argument
might be constructed with respect to DVDs, i.e. they are computer software
and therefore come within the backup exception. However, I doubt it would
fly (it's contrary to the legislative intent of the exception) and, in any
event, it certainly wouldn't apply to videotapes.

3. The AHRA precludes copyright infringement liablity for making personal
copies of non-dramatic music recordings. It does NOT authorize making
copies of videos, nor does it authorize hiring someone else to make copies.

4. Where actual damages from copyright infringement are small, the law
authorizes statutory damages, which can be as much as $150,000 per
infringement (not per copy), plus the copyright owner's attorneys fees.

5. I _am_ a lawyer, practicing IP litigation, and I know from where I
speak.

It is, of course, a business decision as to whether you think it is likely
or not likely that you'd get sued, and only you can make that determination.
However, to make that determination you need accurate information and,
unfortunately, it was not supplied in other responses to your post.

 

Paul,

I read it all . . . and take it all to heart.

And for what it's worth - - in my business, we always refuse such requests,
even from established clients. That's _our_ business response to this
matter. I guess I should have said so in my previous post to this thread.


Steve

 

Even with all the legaleeze... if he copies these to single DVDs for his
client, especially the ones that are no longer available, no one is going to
come after him for it. That's the simple answer.

 

You're probably correct, but that's far different from saying that it is
perfectly legal -- it's not.

 

yeah nap.

It's a business decision he has to make, not a legal one.

Steve

 

Another glitch in the law?

That actually seems to be a problem - you can't protect the integrity of the
recording by copying it to a more stable format after purchasing the
property in the first place? (Yeah, I understand the law you cited - I not
really asking, just expressing incredulity)

Most likely, in a similar circumstance, I would refuse to do the job because
it IS technically illegal (even though I think it shouldn't be, and I don't
see it as unethical) and I don't engage in illegal activity in my business
for any reason. I would probably also explain the they guy something of the
process I would use to make the copy, in theory, so he would be more
educated as to exactly what he is asking me (or any other video company) to
do...

 

For a second there, I thought you were actually citing a case of
successful prosecution. The 321 Studio case concerns a company that
sold software that made copies of DVDs. I'm not convinced that this is
the same thing as someone being prosecuted for making an archive copy of
material he has already paid for a right to use.

I still think he should go ahead under the "reasonableness" clause of
life, and also under the presumption that people should stand up for
some of their rights some of the time. My god, if all of us wimped out
all the time, the corporations would take the shirts off all of our backs...

One day, we'll all owe a big favor to someone who did something we
thought was "stupid" at the time.

 

No, it's apples and oranges. Enforcement of civil law requires a plaintiff
willing to sue. Under the circumstances nappy described, it's unlikely
anyone would spend the money to enforce. That doesn't make it legal,
however.

The law doesn't permit unauthorized copies. As for putting things in more
stable formats, there are limited statutory exceptions for libraries, and I
can think of circumstances that might constitute fair use. I hear this
question come up most often in connection with kids and kids videos ("My
kids wear out three copies of Alladin each year. Why can't I make
backups?") The simple answer is because Disney wants, and has the absolute
right, to insist that you buy a new copy.

This is my personal opinion, and only my personal opinion --nothing to do
with law, and I don't run a video business, so my business opinion in this
context is worth less than any of the pros here. However, it strikes me
that the profit potential for a one-off job transferring a couple of tapes
to DVD doesn't justify the risk. Of course, I may be completely wrong.

With respect to the OP, as I indicated in my post, without knowing a lot
more about the circumstances under which the training tape were created, I
can't provide a _legal_ opinion as to legality, either. If they were done
as works-for-hire, created in-house, done with an assignment of rights, or
pursuant to a license which permitted copying, than there wouldn't be a
problem.

 

As I recall, the 321 Studio case was a DMCA case, i.e. they were sued for
breaching the DECSS encryption algorithm, rather than for contributory
infringement as in Sony v. Universal. I agree that 321 Studio case is not
particularly relevant to the question of making replacement copies.

backs...

And that's a business decision -- I can't help, there.

I agree to this extent -- I stand by my offer to try to talk my firm into
pro bono representation of any wedding videographer who gets sued for using
music from a legally-acquired commercial CD on a wedding video.

 

Both of you. Please approach the bench.


Now I asked you up here to get a sense of why you are wasting my time like
this. I have been on this bench too long to spend my days trying to decide
the guilt or innocence of some poor creep copying some Xerox training videos
which aren't even available anymore. Now, PTRAVEL,what has happened to your
career?.. you used to be a brilliant lawyer.. I had high hopes for you. Now
you're here in front of me with this wimpy case. While Napster, Kazza and AL
Queda are out there? Of COURSE it is illegal but so are most of the MP3s in
my iPod.

I am going to adjourn for today and when we come back here in the
morning I want you two to have this settled or I am going to throw it out of
here faster than you can say Abu Gharaa,. Abuh Gorilla... .. oh whatever.

honorable nappy.

 

Uh-oh. Another one of those political appointee judges.

As Your Honor is no doubt aware, the Federal Rules of Civil Procedure,
specifically Rule 11, provide the standard for an attorney filing an action
in this court. There is no question that my client has the right to enforce
its legally-valid copyright as against any infringement. Similarly, there
is no question that, assuming that the facts alleged in the complaint to be
true (which Your Honor knows the Court must do as it is the standard for
evaluating a motion to dismiss), the defendant is liable for infringement of
that copyright. With respect to the Court's sua sponte dismissal motion,
the Copyright Act specifically anticipates actions, such as this, were
actual damages are de minimus, or even non-existant. Congress clearly
believes that the rights protected by copyright are of sufficient importance
as to merit protection in such circumstance; it is specifically for this
reason that statutory damages are available. I'd also remind the Court that
the election of remedy (i.e., statutory vs. actual damages) need not be made
until the end of trial, at which time plaintiff will have had an opportunity
to assess the extent to which it was harmed by defendant's illegal actions.
As the Supreme Court established in the seminal case of Marbury v. Madison,
for every right there is a remedy. This princple is the cornerstone of
American jurisprudence. Plaintiff has an unquestioned right, and is
entitled, as a matter of law, to the remedy established by Congress. I'd
therefore respectfully submit that the Court's sua sponte motion is not
well-taken and would constitute reversable error if granted. Alternatively,
if the Court is inclined towards dismissal, I'd request that the Court
establish a briefing schedule, so both parties will have a full and fair
opportunity to argue their positions to the Court.

Aside to junior associate: "Go look up the procedural steps for
interlocutary appeal in this jurisdiction. It looks like this bozo. . . uh
.. . . respected jurist is going to rule against us."

Ahem. Your Honor, in order to get a Martindale AV rating, which I have, I
had to be specifically recommended and endorsed by your own colleagues on
the bench. With respect, they clearly don't share your opinion.

The issue here isn't whether the damages are de minimus, but whether Article
I, Section 8 of the United States Constitution has any meaning. Copyright
is an absolute right, tempered only by the concerns of the First Amendment.
The specific mechanism for resolving conflicts between the two is fair use
doctrine. If this Court, in its equitable discretion, believes that the
defendant's actions come within fair use, then it can so rule. However, I'd
remind the Court that, as a matter of law, fair use is only a defense to
infringement. In other words, though the defendant is free to raise this
defense, the plaintiff has an absolute right to prosecute the statutory
violation against him.

Constitutional rights are not "wimpy," to borrow from the Court's lexicon.
They are fundamental to this society, and are the only yardstick provided by
the framers for the exercise of jurisprudence by this Court. No Court in
the country has ever dismissed an action that had substantive merit, was
based on the exercise of a right guaranteed by the Constitution and
confirmed by Congress in well-tested legislation. Surely the Court is not
suggesting that there is any Constitutional right so "wimpy" as to not
deserve the protection and venue for enforcement provided by the United
States District Courts?

Aside to my paralegal: "Make sure to get a transcript of this. We'll send
it to the Commission for Judicial Review. This guy's dirty!"

Your Honor, it's always been plaintiff's preference to reach an amicable
resolution of this matter. Indeed, we've offered to settle for only our
attorneys fees and entry of a stipulated permanent injunction; we're willing
to waive all damages. However, the Defendant just doesn't seem to
understand why it's in his interest to pay my client only $227,435.22 to
settle this case. Perhaps a mandatory settlement conference with a
magistrate judge is in order?

Aside to junior associate: "Prepare a Motion to Disqualify and/or Recusal on
the ground that the judge admitted a conflict of interest. He's a copyright
infringer!"

 

I am very happy for you that you said all that while the cameras were off.
No one.. NO ONE .. makes a complete ass out of me in my own courtroom.. This
court is adjourned till I get back from Vegas.

 

Well, nap.

Looks like you're on his turf now.

Better quit while you're only slightly behind . . .

 

read the posts.. all in jest! PTRAVEL has a good sense of humor!

 

Of course.

Look, nap, do I have to use a smilie face to join in with the jest ?

I get it.