yes, yet another copyright question, but very specific

Discussion in 'Professional Video Production' started by Bill Mecca, Jun 14, 2004.

  1. Bill Mecca

    Bill Mecca Guest

    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!
     
    Bill Mecca, Jun 14, 2004
    #1
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  2. Bill Mecca

    Bill Van Dyk Guest

    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.
     
    Bill Van Dyk, Jun 14, 2004
    #2
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  3. Bill Mecca

    nappy Guest

    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.
     
    nappy, Jun 14, 2004
    #3
  4. Bill Mecca

    Steve Guidry Guest

    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.
     
    Steve Guidry, Jun 14, 2004
    #4
  5. Bill Mecca

    Deco_time Guest

    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.
     
    Deco_time, Jun 14, 2004
    #5
  6. Bill Mecca

    PTRAVEL Guest

    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.
     
    PTRAVEL, Jun 14, 2004
    #6
  7. Bill Mecca

    Steve Guidry Guest

    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
     
    Steve Guidry, Jun 14, 2004
    #7
  8. Bill Mecca

    nappy Guest

    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.
     
    nappy, Jun 14, 2004
    #8
  9. Bill Mecca

    PTRAVEL Guest

    You're probably correct, but that's far different from saying that it is
    perfectly legal -- it's not.
     
    PTRAVEL, Jun 14, 2004
    #9
  10. Bill Mecca

    Steve Guidry Guest

    yeah nap.

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

    Steve
     
    Steve Guidry, Jun 14, 2004
    #10
  11. Bill Mecca

    Tony Guest

    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...
     
    Tony, Jun 14, 2004
    #11
  12. Bill Mecca

    Bill Van Dyk Guest

    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.
     
    Bill Van Dyk, Jun 14, 2004
    #12
  13. Bill Mecca

    PTRAVEL Guest

    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.
     
    PTRAVEL, Jun 14, 2004
    #13
  14. Bill Mecca

    PTRAVEL Guest

    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.
     
    PTRAVEL, Jun 14, 2004
    #14
  15. Bill Mecca

    nappy Guest

    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.
     
    nappy, Jun 14, 2004
    #15
  16. Bill Mecca

    PTRAVEL Guest

    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!"
     
    PTRAVEL, Jun 15, 2004
    #16
  17. Bill Mecca

    nappy Guest

    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.

    :)
     
    nappy, Jun 15, 2004
    #17
  18. Bill Mecca

    Steve Guidry Guest

    Well, nap.

    Looks like you're on his turf now.

    Better quit while you're only slightly behind . . .
     
    Steve Guidry, Jun 15, 2004
    #18
  19. Bill Mecca

    nappy Guest


    read the posts.. all in jest! PTRAVEL has a good sense of humor!
     
    nappy, Jun 15, 2004
    #19
  20. Bill Mecca

    Steve Guidry Guest

    Of course.

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

    I get it.
     
    Steve Guidry, Jun 15, 2004
    #20
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