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

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I want to be able to copy some old VHS to DVD via my PC. Your site answers all the questions except one, as 99% of my VHS tapes have copyright restrictions. Is there a device I can obtain that will allow me to copy these tapes? As most of these movies are now ‘out of production’ and unobtainable I do not see copyright as an issue.

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, and so on and so on.

That being said, what follows is my pretty clear opinion, which I believe to be relatively accurate.

The bottom line: copyright is most definitely an issue.

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Just what is copyright?

Copyright simply 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 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.

Now, 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. Whoever owns the copyright on a particular original work decides what you’re allowed to do. In this case, they said, “No copies of any kind, for any reason, period.”

OK then. 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

CopyrightLet’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. In other words, copying copyrighted material without permission is illegal, whether it’s otherwise available or not.

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 was now available on DVD, but it’s not. “Would be nice” means nothing — other than it sure would be nice.

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 may be devices to circumvent it, but I’m not aware of them.)

Encryption is another technique; you’ll find most DVDs and Blu-Ray disks have some form of 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.

Certainly, if there’s a copy protection scheme in place, that’s 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 is a file-copying program — nothing more, nothing less. It’s fairly nifty technology, but ultimately, it’s just about copying files.

Any technology you use 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, if not most, illegal file sharing. But BitTorrent 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. Even in the case of VHS-to-DVD conversions, there are relatively inexpensive devices you can use to make those copies (though most respect the “Macrovision” copy protection scheme, and I don’t know of a way around that).

On top of that, the Internet and 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, without any action on the part of the creator. They don’t have to say, “This is copyrighted” with some year in order for 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 download is probably illegal.
  • If it’s a movie you could buy or rent at Netflix, or one that was in the theater last year, last month, or last week, your download is probably illegal.
  • If it’s music on a major record label that you’re seeing in music videos, hearing on the radio, or is by a major, well-known, popular artist, your 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.

It’s really pretty simple…

…and yet here’s where it gets ugly.

There’s a lot of stuff that really is free. Media shared under what’s called “Creative Commons” 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 (and typically from their own sites).

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 — and if you get them for free from anywhere that isn’t my site, someone’s ripping me off.

Sometimes it can be hard to tell — I get that. But I find that most people asking the question already know the answer.

Yes, it might be confusing at times (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.

A note about comments

Sadly, copyright, copy protection, and related topics are controversial.

Knowing that, comments on this article will be monitored closely. Disrespectful comments will be deleted. Comments that boil down to “copyright sucks”, “record companies suck”, and the like will be deleted. Links to download sites will be deleted.

You get the idea.

On the other hand, if you have additional insight on the topic, I’d love to hear it.

Podcast audio

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Footnotes & references

1: As I understand it, this potentially breaks a couple of laws: breaking the encryption as well as making a copy.

2: Here’s where I differ from the movie industry: I don’t care if you make a copy for your own personal use for your convenience, and (of course) to back up. Just don’t make one for your friends — they should buy their own copy. Or you could buy one for them.

75 comments on “Is Copyright Still an Issue If Something’s Not Available Anywhere?”

  1. There is one thing that baffles me about country specific restrictions in digital downloads. For example, what business or strategic interest could a site such as Audible have in not selling me a book such as “Talent is overrated”?

    I believe it would be against the law to get a pirated copy of it even though the publisher might not be losing a single dollar. But it is also silly to not let me buy it.

    Book publishing is its own special hell. Publishers apparently have individual contracts with vendors in each country. Some are OK with audible selling in their country, others see it as competition and therefor their contracts disallow it. It’s a mess for the consumer.

    Leo
    02-Sep-2010

    • Country specific restrictions are for multiple reasons: Some countries are prime pirating areas. There may be different distribution rights sold to groups in different regions.

      • The key to this whole issue needs to be remembered: the owner of the right is the only person or entity who can decide (legally and ethically) what to do with his or her copyrighted material.

        I used to use a great textbook when teaching one class; the author is dead, the book is out of print, and talking with the publisher shows that they have no business reason either to publish or to allow an electronic copy to be generated. Whether I think they are silly or foolish or not does not matter. That is their RIGHT.

        Rights belong to individuals; your rights can only exist if you are willing to stand with me in defending the existence of other people’s rights. And if that means I cannot watch the Youtubes I want to in a country where their rights holders haven’t authorized them to be accessible, for example, then, that’s that.

        Now, as a producer of content (let’s say), I may have a lot of business or personal reasons for doing things that lead me to choose how to copyright, protect, market and control the distribution of that content. But… as the producer / creator, I have the first rights in that material. That’s my decision to make. Not anyone else’s. Then, of course, I sell or license my right, and then the new rights-holder has that right.

        This is not about the consumer of the copyrighted materials. It’s about the producers.

  2. I did copyright at college here in Australia as a part of my IT studies. Copyright has it’s place and it important, I have copyrighted stuff myself, but I can see that it has gone too far, and in some cases it is a pain.

    You seemed pretty correct in what you were saying. Now though, i think it is becoming legal to make a backup copy of a DVD that you buy, BUT, it is still illegal to circumnavigate the encryption and copy protection on the DVD. so it is illegal to legally make a backup copy.

    The song Happy Birthday is also under copyright like any other song. So all those family’s that sing it at home and out at the park on someone birthday are actually breaking copyright law and liable to be sued from the copyright holder. 🙂

    • https://en.wikipedia.org/wiki/Happy_Birthday_to_You
      ” In September 2015, a federal judge declared that the Warner/Chappell copyright claim was invalid, ruling that the copyright registration applied only to a specific piano arrangement of the song, and not to its lyrics and melody. In 2016, Warner/Chappell settled for US $14 million, and the court declared that “Happy Birthday to You” was in the public domain.”

      Even if it had been valid, the owners of the copyright could have declared that non-commercial renditions were legitimate.

      Did you pass the class on this matter?

        • It’s still informative to newer readers (especially since the entire page has just been republished in 2019), so I’m glad that Bill gave us the newer information.

  3. I agree with Umair, but cannot see anything useful happening in that regard.
    DVD’s have been ‘regioned’ for years now, in an attempt to control who sees what and when – yet almost every DVD player I’ve ever bought is ‘region-free’.
    It also amuses me that the BBC internet feeds are freely watchable by the whole world, and yet I am frequently told “You cannot view / listen to this content in the UK” when visiting other countries’ streaming sites.
    Is this a copywrite issue? Or something else entirely?

    • It comes down to money. It always does with copyright. Somebody want to make money. As I understand it, the BBC gets its funding from an annual TV license fee that every TV owner must pay. So if the internet feeds were available in the UK, nobody would buy a TV and there would be no annual license fees collected.

      • I bet you expect to be paid for work you do. Seems like a good idea to pay artists and writers as well.

      • You can bypass the region block on websites by using a VPN or proxy. The Opera browser operates over a proxy (which they call a VPN) by default.

        • In Europe, there is a TV use tax which helps pay for TV content on government owned and/or subsidized stations. Some of this money goes to copyright holders. It’s kind of like a mandatory version of Netflix.

  4. Also, just because you can legally download something for free doesn’t mean it’s not copyrighted, nor that you are allowed to give it to others for free.

    And FYI, Bob, it’s “copyright” — the right to copy — not “copywrite”, which I see quite often.

  5. I’m old enough to remember when people used phonographs to play their 78s and 45s (vinyl records for you youngsters) and had cumbersome reel to reel tape decks to record the music. Then the records and tapes would be passed around for others to enjoy. Trading those records and tapes was another frequent past time and when 8-tracks and cassettes came along, it was even easier to copy and share music.

    Music was copyrighted back in the ’50s but neither the RIAA (created in the early 50s to monitor technical standards of the recording industry) or the artists themselves were apparently concerned about copyrights or who might be copying the music. Today, people can record music and videos from radio and TV. Who’s enforcing those copyright violations? The bottom line is, popular artists of today are multi-millionaires and their music and videos are going gold or platinum because people are still buying, regardless of the methods available to circumvent copyrights or copy protection technology.

  6. Responding a bit to Umair, but while this explination falls apart in situations where the media in question is -not- being distributed there, the main reason for region locking (as was explained to me once before) was to allow for differenting prices of items in different areas. For example, that DVD could be 40$ in the US because people are wealthier on average there, but only 10$ in say Spain, because it may be a niche title. So with a region lock, the owner prevents people from importing from the cheaper regions.

    But like I said, that sort of falls apart when you consider areas that arn’t getting it distributed to them at all. Why shouldn’t they be allowed to get it through -any- means?

    This reminds me of the one copyright issue that annoys me the most. There’s this Canadian cartoon that I loved, made by a Canadian animation studio, based on a series made by a Canadian company, that’s licensed to a US company for -free- digital streaming. This is the only way to watch this show now. However, this US company? Can only stream it to the US because of “copyright issues”. I’m sure there’s a good reason for it, but it’s still something that upsets me a little.

  7. To the Original question. If the person owns the videotape, they do have a right to make a backup copy (to whatever medium they wish).

    • Note, though, that Congress has placed into law a very mixed set of messages on “Fair Use Doctrine” (which would allow me to make backup copies of copyrighted materials in any format, how and when I want to). Even Supreme Court decisions are not uniformly in support. For example, some of this body of law and precedent says that copy-protect-defeat devices (like Macrovision de-blockers or decryption tools to use on DVDs) are legal for fair use; others say that mere possession of these devices is a crime.

      Which may ultimately mean that if you get caught, and hauled into court, what will really matter is “how big are your lawyers?”

    • In general, as long as you still own the original product in its original form, which proves that you own the material, the courts will not penalize you for making ONE copy, especially if the original is deteriorating to the point that you cannot play it many more times.

      But if you depend on this logic, you should, of course, keep that original even if it is unplayable.

      In any case, the copyright owner is not going to sue the owner of the original for possessing a copy as long as he does nothing with that copy except keep it for personal pleasure. (And how would they even know you did it). It’s the person who makes the copy for personal use, then allows one friend to copy it, a friend who then copies it for friends, who is legally liable. Even if the original owner told his friend, “Don’t copy this,” he would still be liable because he gave that friend the copy in the first place, and the distribution company could go after both the original copyist and the friend who also copied it.

  8. It is not illegal to transfer a movie you have lawfully purchased from one technology to another, provided the product you create is for personal use. The “property” lies in the effort the artist or inventor used to create the production, and violating the property rights consists of invading the artist’s MARKET. If all you are doing is turning a video into a DVD for use in your own home, no copyright violation occurs, and your conduct is what’s called “fair use.”

    It would be a copyright violation to create a DVD pirate from a VHS pirate, but the actual violation here consists of downloading the VHS pirate. Creating the DVD from the VHS so that it will play on your equipment simply establishes your intent to steal.

    And it is stealing. No different from shoplifting from a store. Yeah, you probably won’t get caught, but you wouldn’t do that, would you? The artist makes his living creating the production for you and others to enjoy. If, e.g., you upload all of the photographs in this month’s Playboy, so that others can see them without buying the magazine, how long could Playboy stay in business? In the long run, you shoot yourself in the foot — if the magazine folds (like Perfect Ten did, at least as a print publication), there will be no more golden eggs for anyone.

  9. “Just because there may not be a legal way to get a copy of something does not magically remove copyright or copyright restrictions. In other words, copying copyrighted material without permission is illegal whether it’s otherwise available or not.”

    Not really true. There are a number of exemptions where (based on long standing copyright law and court decisions) it is legal to copy copyrighted material. The largest ones of these is the right to copy limited amounts of material for educational purposes and for backup.
    Backup would cover the case in question but a hiccup in that was created in the “update” to the law a number of years ago. It is no longer legal to break a copy protection system in the process. This puts the newer media off limits.

    Some old tapes used “macrovision” protection which randomly changes some of the levels in the playback. TV’s generally would automatically correct the levels as they played them but it would hose up the input to another tape recorder enough to make the copy unviewable.
    There are many companies that make cheap devices to do the level corrections to the signal so that another recorder can see the video.

    Regardless of the legality, a maker (especially if they have disappeared) is not likely to sue a person who has copied obsolete (as in no longer available) videos that they have already purchased so that thy can view them in another format. However, if you start putting them on the web for potentially millions of people to download, that is another issue.

  10. To those who justify copying because the bands are making millions are missing a few points. The one I want to bring out here is that although a few bands are still making millions, many more starting up bands are not able to make any money on cd sales because of file sharing. So copyright may be a bummer in some cases but many people are losing income for the lack of my complying to it.

    • My son was in a Christian band in Mexico. They sold some cd’s but for every one they sold it was copied ten times. They quit recording because there was no financial future in doing so.

  11. Where you say “audio CDs are not encrypted” its a mistake. Ever heard of Sony’s Extended Copy Protection? when you put a CD with XCP in your computer it would install a bit of software (often it was considered a rootkit) on the computer.

    BTW, technically in the US, AFAIK, it is legal to make a backup copy — unless its copy-protected. Its to do with the DMCA. The DMCA is sort of weird because it technically makes it illegal to watch DVDs with CSS (a copy-protection) on Linux.

  12. For just a moment, let’s look at the question from the creator’s side.
    As an artist, let’s say I create a painting. That is my creation, I own it and have the right to say who can hang it or copy the image. And I own the creation (the image, not just the canvas) no matter what form it appears in. Copying it does not transfer any rights to the copier that I have not granted.
    Creative works often require the investment of considerable labor and sometimes mega money. When you use my creation without my permission or compensation, whether for profit or pleasure, you steal my investment. Copyright is there to help protect that investment.
    That is true whether I am rich or poor, whether it took me a day or a year, or whether it is being actively marketed or appears to be just laying there.
    Thieves can always come up with a logic for their larceny. Everybody has a “Ya, but..” Nobody is fooling anybody, including the thief himself, even if he does it with the aid of a lawyer.

    Now for the good news. For $5.99 you can have the same music, forever, that it would have cost you $150 to hear just once… or the $250,000 it took to produce, record and distribute it.

    Come on, folks! Get remember honesty?

  13. First off let me say I agree with just about everything in the post. Having said that, it’s always been amazing to me that it seems to be only me that is asked to be honest. You mention the artist, is it not a ripoff when the artist makes a few cents out of his creation whild the music market controling middlemen make dollars? Is it not a moral indignation when creators of drugs to keep aids patients and cancer victims alive while pharmacological firms make billions? Is it not patently unfair when Exxon, BHP and others make multi-billions while holding the wage earner hostage getting to work by putting fuel in his car and the Oil Companies pollute the enviornment that belongs to everyone? Copyright laws and patents often are nothing more than legal thievery.

    • ” is it not a ripoff when the artist makes a few cents out of his creation whild the music market controling middlemen make dollars?”
      It may be a bad decision on the artist’s side of things but it does not make any other crime less of a crime.
      Artists are willing to make that choice because they would prefer a music company selling a million copies that they make a few cents on rather than them selling a hundred copies that they make a dollar on.

  14. The left hand.
    Copyright infringement lawsuits represent a risk of loss to the plaintiff. It is difficult to gather evidence against someone copying media for backup purposes, that is, not distributing.
    The right hand.
    If you get sued you will lose. You won’t lose as much if you win, but you’ll still lose.
    Can you carry the weight?
    Just the same, I suspect its the distribution side of the formula, profit or no, that spins the storm.

    PS. It doesn’t matter how dishonest the industry is. In a trial only the accused will have his integrity questioned.

  15. Having spent 20 years working for MCPS (now part of PRS for music) I can confirm that you have an excellent grasp of the concept of Copyright and what ‘Rights’ copyright owners have. It is up to them (or their agents) as to whether or not they wish to take action against offenders.

  16. On the question of ‘copyright’ I would argue the case that to ‘convert’ is not copying as such and would therefore be legal to reproduce the ‘converted’ item. Is it the same to translate a document into another language and then assume it’s been ‘copied’?
    Does the ‘originator’ intend the creation to become extinct or to be ‘converted’ in the mind and then reproduced as an original thought?
    As has been stated,honesty will win and you can’t ‘copy’ that!

  17. I think if artists really wanted to copyright there creations they would find some other way so sell there stuff in mass quantities

  18. If you wish to obtain a definite, legal answer, you can call the United States Copyright Office at(202) 707-5959. This number handles questions regarding copyright law. They should also be able to direct you to the specific section of the copyright law (also found online on their website)pertaining to your question. (Like when speaking to the IRS, it’s always good to know “where it’s written” to be sure YOU’RE “backed up” legally, should your actions be challenged! (I’ve personally received wrong info from “inexperienced” or “just wrong” IRS, Microsost Volume Licensing etc. reps ..Copyright Law probably falls into the same level of complexity as these subjects..so “get it in writing” . However, I’m sure dealing with such complex, legal subjects can’t always be easy, so I don’t fault them for a mistake here and there 🙂

  19. It was always my understanding that a true BACKUP copy is fair use and not a violation of copyright law. It becomes illegal when you use that backup for anything else other than a true backup copy, such as loaning to friends to watch or listen to or making copies for them. I could be wrong, as I am not a lawyer. It’s probably a gray area and may not ever have been really challenged in court. The temptation to copy is great, as there are so many tools that permit it, even on copy-protected media. Perhaps better pricing on the part of the media companies would decrease that temptation? Other ways of distributing content could help as well. Also, seems to me that after “x” number of years, the copyright should go away if not renewed in some way, especially when it involves obsolete media.
    After a certain number of years, some media should go into public domain, unless the copyright is renewed.

    • It does go into public domain. But the laws vary on this from 50 years after the author’s death to 70 years from when it was created. Different laws apply to books, movies, etc. according to when they were released. The Gutenberg Project exists solely around making electronic copies of books that have come into the public domain. However with some books, authors and publishers are now using ways under the law to extend the copyright. For instance with older black and white movies, studios can colorize them and re-release, this starts the clock over again. Same for the Star Wars Special Editions, this renewed the copyright for them when they were released and started the clock again on their copyright even for the older copies. (Otherwise the copyrights for Episodes 4-6 would have expired sometime in 2026, as I understand it. Now they will not expire until 70 years after George Lucas dies.) For book publishers, there are some that re-release older titles with just one or two copies and a different forward or some insignificant change that renews the copyright. And the trend in the law is not to restrict the time a work is under copyright but to extend it.

      (Not a lawyer, just a passive observer of copyright law.)

  20. First, like you, I am not a lawyer in any form. Second, as you’ve said, it is the right of the copyright owner to make or restrict availability as one chooses, without relinquishing copyright. Disney is highly noted for this.

    Making copies, is a more confusing issue. Under copyright law in the U.S., an individual can make one copy of legally acquired content for archival purposes. That’s plain and simple; you can make a backup for yourself so that you can use the backup and preserve the original.

    What causes a problem is the DMCA (Digital Millenium Copyright Act) which requires any digital recording device to recognize copy protection and refuse to record it. DMCA also makes it illegal to disable the recognition which, essentially, renders the ability to make an archival copy useless. But all is not lost.

    There is a device called the Digital Video Stabilizer. There are a few companies which make it, and each uses a slightly different circuit design, but the effect is the same. During playback,it removes certain components of the video signal, such as composite sync. Macrovision protection happens to be located in the sync region. TV sync circuits don’t see it and, so, TV is not affected. Recording devices do see it, which causes sync clamping problems, or distorted video. By removing and replacing the composite sync, copy protection has been removed. Sync is not copyrighted, and so no illegal act has occurred. The use of the Stabilizer is legal as it’s nothing more than a Proc Amp, a device mandated for use in TV stations to comply with FCC regulations. Congressional hearings in the early 1990’s established the legality of the Digital Video Stabilizer. And, lastly, DMCA has not been violated since the recognition circuitry of any recording device has not been disabled. Stabilizers are not available in stores, on the sole basis that there is not enough demand to warrant inventory. Catalog and online ordering through reputable companies is available, and the cost ranges from $25 – $40, plus probable shipping.

    The drawback to such a device is that it’s analog and must operate in real-time, which is naturally time-consuming. Also, even though minimal as can be, any electronic pass-thru does degrade resolution, however insignificantly. With VHS, the quality is so inherently poor that the device will not affect it at all.

    The same method can be used to make a legal archival copy of a DVD, as well. Again, time and a minutely reduced resolution are the only drawbacks. The point, though, is that there is a legal method to create a copy of an otherwise unavailable video recording.

    I might also mention that the simple act of downloading material is not illegal. What’s illegal is making copyrighted material available for UPloading, which is the intent behind torrents. In RIAA lawsuits that make the big news, the media incorrectly reports that a defendant lost a case for downloading and must pay massive fines. In actuality, the defendant lost due to leaving the files on the network for uploading.

    The same can be said for conspiracy or complicity to download copyrighted material. In order for conspiracy or complicity to exist, there must be deliberate planning and agreement between the supplier of the website and the downloader. A downloader has not planned the creation of the site, nor has agreed to any contract in downloading the material, even by default. Otherwise, every single computer user in the world is guilty of copyright infringement since the computer must download a copy of that site’s page in order to view it.

  21. Just had to respond to a comment saying many bands are loosing out on sales to the extent they don’t make any money.
    It is widely recognised, in the industry, NO bands EVER, make any money on their first two albums, as the record company seeks to recover ALL ‘costs’ before considering the artists miserly percentage.

    A new artist would make more money freely distributing their creations on the internet, using their web page and advertising laxatives for left handed amoeba on Mars.

  22. I’ve been in printing for nearly fifty years and copyrights have always been a source of confusion to many. As the printer, we can be sued right along with the author when copyrights are infringed. Thus we take extra measures to inform our customers of the issues involved and if we have any doubt at all about the status of material we are being asked to produce, we respectfully decline to print the job.

    As far as what is found on the internet, it must be assumed that ALL content is covered by copyright unless there is a specific attached notice that the material has been placed in the public domain or may be reproduced under specific conditions. Any work that is “fixed in a tangible medium of expression” on or after January 1, 1978 is covered for the life of the author + 70 years — you are not going to outlive it! Technically, that even makes forwarding an email from you mother on to your siblings illegal unless you have her written permission to do so!

    Anything published before 1923 is in the public domain. Between then and 1978 it can be a nightmare figuring out if a work was originally copyrighted and by whom, and if so was it renewed. Then the next obstacle is trying to find and contact the copyright holder. In many cases, due to lack of factual information, it is best to just assume that it was copyrighted and the copyrights were renewed.

    Privately, as a researcher and author I have been dismayed when my material and photos are copied and redistributed without my permission. Never mind that every printed copy has a notice and every web page has a copyright notice at both the top and bottom and most pictures also carry my individual copyright notice or a notice of my permission to publish the pictures provided by others. In most cases, if I am not selling the information in book or CD form, I am happy to give permission to use my information if credit is given to the source and the use is not for profit.

    • “Technically, that even makes forwarding an email from you mother on to your siblings illegal unless you have her written permission to do so!”
      but the law is written so that there is no penalty, other than a cease and desist order, if it is not marked.

      Your mother can tell you to quit copying her emails but cannot get financial penalties.

      • Posting something on the web or sending a created work by email can be used as proof of copyright unless somebody has some way of proving that they created it first. Copyright is the right you have toward your creation. Registering the copyright is the classic way of establishing proof of creatorship and ownership.

      • I’m not a lawyer, but here’s how I understand the issue. Forwarding an email from your grandmother may be a copyright infringement, but unless grandma complains, it’s a non-issue. If she does complain, it might be illegal, but since there is no money lost, the most likely worst case would be a cease and desist order, because every case of monetary settlements for copyright infringement I’ve ever read about were over the loss of potential income. This is just speculation, but I wouldn’t be afraid to forward emails from grandma to appropriate recipients.

  23. Leo has done a good job of summarizing the issues.
    Many of these issues are in limbo, some are settled.

    In federal court, the 9th Circuit has stated that it “may be legal to own a backup of a DVD, but illegal to distribute the tools to make one.” There are many legal scholars who believe making “a personal backup copy” is not exempt (i.e., it’s illegal), as it has a material impact upon the market for valuable old works distributed in new media.

    It is certainly not illegal to record anything “off the air”, as was implied by another comment, provided it is only for private, personal use. That is one of the many exceptions in the current laws. Under the Audio Home Recording Act is also NOT illegal to make an “analog” recording from an existing recording that you own. If Congress had meant “digital” copying was also okay, it would have said so.

    The validity of copyright of “Happy Birthday” is in dispute, having been published well before 1923 and perhaps not properly marked, registered or renewed. In any case, “performing” a copyrighted song in private (or in church) is not a copyright infringement — another statutory exemption.

    To reply to another comment: “The simple act of downloading copyrighted materials”, if they were not legally uploaded, actually IS a copyright infringement. E.g., Virgin v. Thomas, Jury Instructions: “The act of downloading copyrighted sound recordings on a peer‐to‐peer network, without license from the copyright owners, violates the copyright owners’ exclusive reproduction right.” It is, in actuality, making another unauthorized copy.

    It’s true that Thomas was found liable for $1.92M for “infringement” of 24 songs downloaded via Kazaa, but the case also alleged that she had further “shared” those songs on the net, making the verdict ambiguous as to whether the jury would have found the act of MERELY downloading to be an infringement.

    Or maybe the jury simply didn’t like her because of the evidence that she had repeatedly lied, and tampered with evidence in an effort to avoid being caught, and her having refused a $5,000 settlement offer.

    Oddly, many of the best legal arguments were made that her “making them available on the net” was not legally an infringement because it did not constitute prohibited “publication or distribution” of any copies. Success in that argument could mean the music and movie lawyers would stop pursuing uploaders and refocus on downloaders who actually make the unauthorized copies.

  24. I’m surprised that some enterprising well-funded group hasn’t strongly argued and won a judgement that anything transmitted via the Internet is therefore in the PUBLIC DOMAIN. After all, that’s what the Internet is….. unlike a personal phone call, a printed book, a physical DVD or VHS tape, etc.

    • Any content which is created belongs to the person who created it. It’s very doubtful any court would see it otherwise. Without copyright protection of content on the internet, the entire concept of intellectual property would cease to exist as pretty much every song, movie or printed word ever created appears somewhere on the internet. That would eliminate most incentive to create content.

    • That’s akin to saying that music should be regarded as public domain if broadcast via the radio. The distribution mechanism does not – and should not – affect copyright.

  25. One thing that should be remembered is that the courts will look at the entire situation. It is for this reason that the owner of the copyright will not sue someone for making a copy for personal use. They know that if they sue a person for making a DVD copy of a VHS movie, that the court, when it sees that the person owns the movie, it will not penalize the owner.

    So, even it it is illegal on paper (or on the VHS box), it will not be enforced, unless the person is giving away or selling copies. That’s a whole different ballbark.

  26. There *are* devices that remove Macrovision copy protection — I own one that I purchased many, *many* years ago. I had a stereo receiver that had several video inputs and a video output that went to my TV, allowing me to switch (using the stereo’s remote) between several video sources. This was *long* before TVs had multiple inputs, like they do today.

    Anyway, the Macrovision copy-protection would mess up the video signal going thru the stereo to the TV (it would appear scrambled on the TV), so I found a device that would stop that from happening. But it’s been so many years ago that I purchased it (at least 25 years ago) that I have no recollection of where I bought it, unfortunately.

    I even took the device apart once, to see what made it tick. It’s a very simple circuit that I could easily copy — except for the fact that the creator of the device erased the numbers off of the few microchips that are in there, so I have no idea what they are, unfortunately. Seemed the copy-protection-breaker didn’t want his work copied? Is that irony or hypocrisy? 😉

  27. This IS ‘off-topic’, I suppose, but I really would like an answer: why are so many of the comments datelined 2010 (and one or two 2011) when the article was posted July 21, 2017?

    • Because it’s an update to an article originally posted September 2, 2010. That is stated in the article just below the list of Read More: links. Not so off topic, but it serves as a reminder to read articles more carefully. 🙂

    • Thanks, Mark & Leo! That was the ONLY line my eyes flicked over without reading, honest! 🙂 As a musician/songwriter AND music-in-general aficionado this is a subject that particularly fascinates me…

  28. As mentioned above, to transfer a Macrovision “protected” VHS to DVD, search for “Digital Video Stabilizer” readily available on Amazon or ebay. The quality of VHS is such that if a movie is worth copying and is available on DVD, it’s probably worth buying for the quality upgrade. But if, as in the case cited, there is no alternative to format shifting I wouldn’t lose any sleep over it.

  29. What about services like VUDU that will upload a DVD to their site for your use on any device for a fee? If I own a DVD of “Snow White” they will copy it to their site for a fee. Then I can log on and watch from anywhere on a PC, phone etc.

  30. Copyrights used to be valid for 28 years. If the creator of the work was still alive they could renew the copyright.

    But Disney Corporation was appalled that rights to Steamboat Willy would expire and paid a lot of money to lobbyists to convince the US Congress to extend copyright protection, now for 95 years.

    As far as I am concerned this was a gigantic theft from the public. All we get in return is a very slightly more prosperous Disney Corporation.

    Copyrights should be valid for the same length as patents, IMHO – 17 years.

  31. I always wondered how YouTube gets away with having thousands and thousands of postings of videos and sound files. Many of those are copyrighted, I’m sure and I doubt they pay royalties on all those works; it would be prohibitively expensive. Or are they posted by users so that YouTube is not responsible? Why would anyone risk posting to YouTube something that is copyrighted? You can find almost any music and many full movies there too.

    If artists and publishers were truly that concerned about pirating, it seems to me they would go after those who make devices and software that make copying possible and so easy. That’s the only way to really stop it or at least slow it down. Those who want to copy without paying will find a way and therein lies the problem. Technology has made it easier to do illegal things (especially copying media) and probably most of the time without being caught or prosecuted. Otherwise honest people will sometimes think nothing of making a copy of some music or a movie for a friend or family member, even though they may know deep down inside that it is wrong.

    It seems to me that if publishers would drop their prices, more media would be sold and less would be copied.

    • “I doubt they pay royalties on all those works.” – YouTube does indeed pay copyright holders and also responds to complaints of infringement.

  32. Yes, it’s an old article, but it wasn’t fully correct then.

    RE: Disney v. Betamax, something that defined life for a generation of VCR owners, you are allowed to tape (time-shift) programming for viewing at a later time, as long as the recording is for personal use, not for hire, retransmission or commercial use. This translates to you can tape your records, tapes and CDs for your own personal use (including making a ‘mixtape’}.

    If you have ever watched You Tube and the poster claims Fair Use, they probably don’t know what they are talking about, but they are less likely to get in trouble due to the nature of arrangements on YT. Those issues are quite fluid however and probably not going to last forever.

    Copyrights used to expire after 25 years and some party had to renew them in a timely fashion. Now the term is 75 years and I believe that some of those copyrights are extended retroactively as well. Media companies will go out of their way to acquire stuff and protect what they have, it’s their life’s blood. Also notable is that a great number of the world’s biggest media companies have merged, sold off to others and formed alliances to protect their materials under the umbrella of a few media companies and mostly one arm to release (music videos – VEVO). The other would be Warner Music Group.

    In the last 20 years we’ve lost most of the music industry’s biggest names. The company that gave us the Beatles got out altogether. It’s a crazy world for all of us.

    But if it’s YOUR personal copy, you CAN transfer the material to your own media. And NO, you cannot transmit, sell, make further copies for others (mixtapes and CDs are a murky thing) or just do it because it’s out of print (OOP is a tem meaning not being sold/’published’ as even music and video are technically published, remember the P in a circle, that’s what that means).

  33. Not directly related to copying, but a few years ago I purchased a used movie DVD on eBay from a seller in the UK. This movie was not available anywhere new. The movie was not available (to the best of my ability to search) anywhere in North America even as a used copy. When I got my purchased DVD, on the case it had a section stating that it was illegal for the original purchaser to sell it to anyone else. I have always bought used books, records, cassettes, and now DVDs because I can’t afford to buy all I would like as new. Apparently for some of the movie industry, copyright is not enough, they want to ban resale. One reason I don’t purchase eBooks, but only physical copies. You never actually own the eBook, and cannot legally loan it, share it or sell it to anyone. I hate renting or leasing and refuse to do so. Give me a physical copy of something and I’m happy.

    • That;s not due to them being ebooks, it’s the decision of the publisher. For example my ebooks as far as I’m concerned you own it when you buy it from me. You can loan it, you can sell it, you can give it. The only thing I point out is that you can’t “copy” it — meaning if you give it to someone then you no longer have a copy yourself. Basically treat it like a physical book.

    • That DVD was likely a pre-release copy for a journalist. And 10 to 1, I bet you, the studio will give you a regular copy and a significant bounty ($5 to 10k) for turning the person who sold it to you in.

      • I’ve seen that warning on rental DVDs, and the fact that it said that it was illegal for the original purchaser to sell it to anyone else, seems to indicate that it wasn’t an evaluation copy.

  34. When I first saw this article I thought it was going to be about copyright and the use of computer image backups. So do image backups violate copyright? Some software used to come on copy protected media. What about images of that type of software? And are the answers to these questions likely to be different in other countries than the USA?

    • It’s actually very different because an image backup will probably not be transferred to a different computer. It can only be used to restore back to the computer that was backed up. Different computers use different hardware, so it’s rare that an operating system could be installed on another machine through an image backup. If, however, a person did that, they would be in violation of their license.

      Also, a backup image of any programs installed on a computer cannot be transferred to another computer because of the way that software installation works. Software comes on protected media as you say. When it is installed on a computer it goes through a long process of creating the necessary files in the right places, and also of making changes to the computer’s registry that allows the program to run. Simply transferring the files to another computer would not work.

  35. What we really need is clever payment mechanisms. We used to hear (I am a member of the Medicare generation) the phrase “if I had a nickle for …” When there are efficient mechanisms to extract a small payment for every “use” of something there is no problem rewarding the creator (think toll roads, listening to a song on the radio where you “pay” by listening to the ads, On-Demand movies on Comcast, etc.). But technology has not yet made available a means for efficiently paying for the “use” of media (songs, ebooks, movies, etc.) AND extracting a “market price” that reflects its current value (I’m sorry, but the typical 1949 Roy Rodgers cowboy movie is not currently as valuable as Despicable Me).

    I “own” a copy of a VCR movie. I might want to watch it again. Its media (tape) is quickly degrading and I know that my last VCR player does not have long for this world. But I have no efficient way of paying for and obtaining from the copyright owner access to its future performance on terms that reflects (1) its current market value [tiny, in this case], (2) the money I already paid to obtain supposedly indefinite access to the content and (3) the small marginal cost of making that content available to me in an alternate way.

    This is a failure of technological imagination, not law. If we want folks to be able to make a living singing, writing or entertaining, we need better payment mechanisms. If technology is all that great, why not tackle this issue?

    An example: There is a PBS Front Line video that I rented several times as a DVD from NETFLIX to share with family and friends. Now NETFLIX no longer has a copy (and probably will not buy another copy), so my only option may be to buy a DVD copy from PBS, when all I really want is to pay to USE it again. [By the way, there may be another way to get it via stream. I am only using this as an example to show how the extant payment mechanisms we have for USE versus OWN can fail to work efficiently.]

  36. There does exist technology now that can easily copy even Macro-view VCR tapes, they use “screen capture” by directly connecting your VCR to your PC by way of a media card. Originally they were intended only to transmit the video to other places in your house, such as a smart TV, tablet, etc. But programs do exist to save the data as it transmits and thus allow you to have a digital copy. This is highly illegal.

    One thing many do not realize is even common uses of media using WiFi or other wireless technology may be illegal. For instance, just using a VHF transmitter to transmit say your HBO from the living room into your bedroom, is copyright infringement because you are “broadcasting”. A friend I know does not have the capability to view Amazon on his older “smart” TV. So he uses a device mirroring program to take the signal from his PC and display it on his “smart” TV that does support mirroring. This is copyright infringement. He is broadcasting. While it would be difficult to catch him at this due to the simple fact that it is mirroring over encrypted WiFi. And also they are unlikely to expend this effort since he is paying for the content on his PC screen so, Amazon is not going to get upset about him transmitting it to a bigger screen. But he is violating the terms of the copyright. If he ran a cable to the TV and mirrored it that way, he would be perfectly legal.

    Other more simpler technologies can be copyright infringements. For instance, projectors which transmit a DVD, VCR tape or other copyrighted material onto a backyard screen that neighbors can watch from their yards might be considered a commercial performance. A “family movie night” with a DVD or VCR tape where the family members who do not live in the house bring say snacks over for everyone, might be considered a commercial performance. And yea, sharing your Netflix password with neighbors or family members not living in the same house is not just violating your terms of service but also could be construed as copyright infringement.

    While copyright enforcement has taken a back seat during the “War on Terror” it is still being enforced. They just generally tend to focus on those who are sharing a media over and over to many potential customers of the work or those who are obviously getting paid for it. So, no they are not likely to come busting down your door for streaming your Walking Dead over WiFi into the bedroom for convenience or busting your next “family movie night” because your brother brought KFC, or try to bust you for digitizing your old VCR tapes, they can. As a general rule they do look differently at an actual owner of a work who just uses it in an unauthorized manner than they do at an obvious pirate who either illegally obtained the material or is profiting of the illegal distribution of it. But, I guarantee you if you raise their flags and let them know you are doing it, they will come after you. For instance if you plop those babies on YouTube, I bet you will be neck deep in lawyers before the last tape finishes uploading. Same if you try to store them on a cloud service that scans it’s content for copyrighted materials.

    The penalties for copyright infringement are no joke. I had a childhood acquaintance from another town who was recording movies off his satellite and “renting” them out to his friends for half what the local video rental place charged. The local video rental store noticed the drop in business and then asked one of his friends when they came in to rent a movie he didn’t have yet. The kid told the store owner they were getting them for half what he charged from so and so. The kid thought it might get the store to lower his prices. Nope, he contacted his distributor and by the end of the month that kid who was renting videos and his family were neck deep in law enforcement and lawyers. Before it was over the parents lost their home, one of their cars and most of their savings. Everything used in the copyright infringement was fair game. They took the car because it came out that he used it to deliver or retrieve the videos from his renters. The home because the infringement occurred there. The bank accounts because the fines were hefty. He barely escaped without getting a significant prison sentence only because he was not yet 18.

  37. I’m uploading my genealogical work to internetarchive.org. I know what will happen. On the other hand, if I don’t put it somewhere I also know what will happen when I die. Some of my research was incredibly involved and expensive and really took a toll on my head from banging it on the desk. I’m giving it away in hopes I will at least be credited with it. The chase is fun. Finally putting the puzzle together is fun. Sharing is fun. Taking my work and using it as your own, not fun.

  38. To echo John Hogan’s July 31, 2017 comment – I’ve acquired multiple “Video Capture Devices” which have inputs from the composite outputs of any device, notably VHS players, and outputs to a standard USB-A plug which goes into a computer. With the proper video capture software, both paid and free, anything that outputs from the VHS player is converted into digital format and stored on the computer.

    They were acquired to allow the conversion of home-recorded video VHS tapes to digital formats, either files or movie DVDs. They have ranged from $9 to over $100; with wide varieties of both quality and software capabilities. They all have worked, more-or-less, on all tapes regardless of source. There is no apparent difference between Macro-vision protected tapes and home recorded video.

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