Is Copyright Still an Issue If Something’s Not Available Anywhere?

Yes. Availability has nothing to do with it.

Before I dive in, I need to be super clear: I’m not a lawyer. Never have been, and don’t plan on becoming one. This is not legal advice; use it at your own risk, no animals were harmed, some objects may appear smaller, your mileage may vary, and so on and so on.

That being said, I have a clear opinion which I believe to be relatively accurate.

The bottom line: copyright is most definitely an issue.

Copyright vs copy wrong

Even if something’s not available anywhere, it’s still protected by copyright. You can’t legally copy it without permission, no matter how rare it is. Copyright gives the creator control, not you. Just because it’s easy to copy doesn’t mean it’s legal to copy.

What is copyright?

A copyright says that the person (or entity) who creates an original work has the right to say what can and cannot be done with it. They control or own the “right” to “copy.”

Pretty simple.

Copyright law codifies that: those rights are protected by international law, and violating those rights — say by making copies of someone’s work without their permission — is illegal.

Also pretty simple.

Sometimes copyright can seem pretty silly. For example, as I understand it, if I own a DVD of a movie, it is illegal for me to make a backup copy of that movie to protect my investment in the DVD, or for me to copy that movie to my laptop’s hard disk as a convenience to watch elsewhere.1

It’s important to realize that copyright law didn’t make that rule — the owners of the media did. It’s the law that allows them to do so. Whoever owns the copyright on a particular original work decides what you’re allowed to do. In the case of my DVD, they said, “No copies of any kind, for any reason, period.”

Seems silly. But it is what it is. It is their right to assert that restriction on the content they’ve produced.

Availability and copyright

Let’s clear this up from the original question also: availability and copyright are completely unrelated.

Just because there may not be a legal way to get a copy of something does not magically remove copyright or copyright restrictions. Copying copyrighted material without permission is illegal, whether or not it is otherwise available.

If there’s no legal way to get a copy, then you can’t get or make a copy without breaking the law. Period.

There’s no rule that says things must always be available. Some things just aren’t. If I choose to produce something in limited quantity and then stop making it available, that’s my right. In fact, it might even be my intent.

Even if the copyright owner doesn’t have the resources or inclination to make something available in a format you prefer, unless they say otherwise, it’s still not legal for you to make the copy yourself.

And yeah, sometimes that sucks. I agree it would be nice if everything previously available on VHS tape were now available on DVD, but it’s not. “Would be nice” means nothing.

Technology and copyright

Technology is often used in an attempt to enforce copyright. “Copy protection” schemes are widespread. The example in the question, known as Macrovision, is a technology used to prevent analog VHS tapes from being copied to other media. (There are probably devices to circumvent it.)

Encryption is another technique; you’ll find most DVDs and Blu-Ray disks have copy protection using encryption. As I understand it (insert my “not a lawyer” statement here again), the act of circumventing those copy protection schemes may be illegal.

Here’s a hard one to grasp: technically, copyright and copy protection are completely unrelated.

If there’s a copy protection scheme in place, that’s certainly a pretty good sign that the copyright owner doesn’t want that material copied and doing so is probably illegal. But the copyright owner could — for reasons I can’t envision — decide otherwise.

More importantly, copyright does not require copy protection. Audio CDs, for example, are not encrypted, but they are still typically copyrighted and illegal to copy. Same goes, for example, for the ebooks I sell: they are not encrypted, but it’s still illegal to make copies2.

Downloads and copyright

I was tempted to call this section “BitTorrent and copyright”, but that would miss the point. At its core, BitTorrent has nothing to do with copyright.

BitTorrent and other peer-to-peer file sharing programs are file-copying programs — nothing more, nothing less. It’s fairly nifty technology, but ultimately, it’s just about copying files from one place to another.

Any technology used to download or copy a file can be used legally or illegally. The technology you use to download a file has no relationship to copyright.

Yes, BitTorrent is used for a lot of illegal file sharing. But BitTorrent itself isn’t illegal. What’s illegal is sharing copyrighted files without permission. And it’s illegal no matter what technology you use to download them.

The “problem”, if you want to call it that, is that computers have made copying digital media trivial. On top of that, the broadband connections have made transferring files trivial. It’s not unrealistic for many people to download a 4.7 gigabyte file — the size of a DVD.

All that makes downloading copyrighted material extremely easy. Not legal; just easy.

What is copyrighted?

Knowing what is and is not copyrighted is both simple and really, really ugly.

In the U.S., at least, anything created is copyrighted immediately, with no action needed by the creator. They don’t have to say, “This is copyrighted” with some year for the copyright to be in place; it’s in place by default. The additional statements, and even registering copyright with the U.S. Copyright Office, are simply steps that remind honest people to remain honest and make the results of any legal actions clearer, and sometimes more costly, to the offender.

When downloading something for free, the best rule of thumb is: if it’s too good to be true, it’s probably illegal.

• If the other alternative is to purchase it, your free download is probably illegal.
• If it’s a movie you could stream on Netflix, or one that was in the theater last year, last month, or last week, your free download is probably illegal.
• If it’s music on a major record label that you’re seeing in music videos, hearing on the radio, available on streaming services, or created by a major, well-known, popular artist, your free download is probably illegal.
• If the site you’re getting it from isn’t a major retailer endorsed by, supported by, or related to the artist or producer of the content, and they’re making a big deal out of it being “FREE!”, your download is probably illegal.

You can see where I’m going.

Here’s where it gets ugly.

There’s a lot of stuff that really is free. Media shared under what’s called the Creative Commons license is free with varying degrees of usage limitations. Public domain is free. Individual and independent artists often make some or all of their work available for free for a variety of reasons.

One great example: I give away a free edition of my Internet Safety ebook when you subscribe to my newsletter, and you are free — encouraged, even — to share copies with others. My other ebooks? Not free. If you get them for free from anywhere that isn’t my site, someone’s ripping me off.

Sometimes it’s hard to tell. I get that. But most people asking already know the answer.

It might be confusing (though most often it’s not), and we might not agree with all the ramifications — I know I don’t — but it is what it is.