A question arose among myself and two friends at dinner tonight. As I have just begun a home-based business of transferring 8mm/S8 home movies to DVD and mini-DV, the question came up of transferring VHS to DVD. Of course, I said I could do that also.

Then the question was asked, if they had a VHS "Hollywood" movie (like JAWS or something), could I transfer that to DVD? My answer was "NO", as it would violate copyright and they would need to buy the DVD.

The argument I got was that they had bought the VHS tape and they should have the right to copy it to DVD for private use and if they could do it themselves, they would, so why shouldn't I? They compared that to buying a music CD and making "mixes" on other CDs for private use, so what's the difference?

Even though I couldn't explain why I thought it was wrong, I still felt it was a huge copyright infringement to do so. Naturally, I took a load of crap for the rest of the night (not really, but they wouldn't let it go)! Can anyone tell me if I am right or wrong in my opinion?

Any help is appreciated in advance!

Although, people do backup their videos to tape (even movies), it is illegal. I think it would even be worse if you charge someone for doing it. Plus, the cost of convertinf the VHS to DVD might be equivalent or more than converting the tape.

Hi Mark,

Let me give you a short answer. The short answer lies in billing.

Whatever the price of the movie is on DVD (be it "Jaws" or whatever), your price for DVD transfer from VHS will be that much plus a little more. In other words, convince your friends that it's simply more economical to just buy the DVD. They get the real thing for less money. Problem solved,

Not to mention, transferrieng the movie from VHS would degrade the movie... quite badly if the tape is worn. Why pay to get a half-ass movie?

Some people...

Thanks all, but it was all a rhetorical question. No one at the table wanted me to actually convert their store-bought movie to a DVD, they were trying to convince me to advertise that feature and make money and I said that it would be illegal.

I guess the main question is - would it be illegal for me to convert someone's store-bought movie to DVD, if they owned the VHS version of that movie?

My assumption is "yes" and their assumptions are "no".

Thanks in advance.

Stretch the analogy a bit. Do you see any services offering to copy people's music cd's for them?

No.

You see companies selling the technology to do it themselves, (cd burners, software). But no one is offering to sell the transfer service AS A PROFITABLE ENTERPRISE.

Kinko's won't let you copy copyrighted material. It's not legal.

Same thing.

Thanks anyway guys. I guess I was looking for a more technical answer as to give these guys to explain "why" it was illegal.

I don't really need analogies or convincing myself, I just don't have the legal background to explain why that type of transfer isn't done.

Thanks anyway.

<<<-- Originally posted by Aanarav Sareen : Although, people do backup their videos to tape (even movies), it is illegal. -->>>

Actually, from what I understand (and have read in posts from respected members like Paul Tauger), the Tape ->DVD transfer would fall under "format shifting" which is legal -- at least when done privately by the end user (not in a for-profit manner as suggested in the original post).

From what I have read, there is question about the legality of backing up DVDs to DVD-Rs, but converting VHS tape to DVD would fall under format shifting and is legal.

Amoung the rights covered in the copyright laws are.

The right to copy
The right to distribute
The right to reproduce
The right to publicly perform

The service you are discussing, falls under the right to reproduce, and the right to distribute. Those rights are retained by the copyright owner under his bundle of rights.

That's the 'legal' answer.

Now that's more like it! Thanks for the responses.

So may I assume (from the last two responses) that an individual could "reformat" their VHS to DVD themselves, for their own private use, but could not have another person do it for them (as that is reproduction and/or distribution)?

Is that accurate? I'm not looking to to do this and have no desire to do so - whether it's legal or not - just want to satisfy the debate with my friends!

Thanks! I'm learning here!

Mark, format-shifting comes up in this thread (http://www.dvinfo.net/conf/showthread.php?s=&threadid=11101&highlight=format+shifting), which, ironically, includes posts from you :)

I've read up on it elsewhere, and usually it is in relation to format-shifting of audio media. Beyond that, I've only read anecdotal info on format-shifting also applying to video media. Hopefully, Paul can perhaps clarify if it truly does apply.

Format shifting is interesting terminology to me. It sounds like a VHS owner of a tape could go to someone else and pay them to format shift a vhs video, but the original owner could do nothing more with the DVD than just watch it, and they couldn't make more than that one copy.

If someone asked me to make a DVD copy of a copyrighted video I say no everytime. The only exception I can come up with is if I burned into the DVD copy a restriction that stated "not for broadcast, barter, or resale", in this way they have their copy, but it becomes pretty useless to try and replicate it.

The one thing I would try to avoid is giving someone a DVD-R copy of a copyrighted vhs video that they can then use to make multiple copies from down the road, and the burned in warning achieves that result.

<<<-- Originally posted by Alessandro Machi : Format shifting is interesting terminology to me. It sounds like a VHS owner of a tape could go to someone else and pay them to format shift a vhs video-->>>

No, as mentioned before, they can't. They can do it themselves for personal, private use, but it cannot be done as a commercial venture. That part is pretty clear.

<<<-- Originally posted by Mark Moore : Thanks anyway guys. I guess I was looking for a more technical answer as to give these guys to explain "why" it was illegal.

I don't really need analogies or convincing myself, I just don't have the legal background to explain why that type of transfer isn't done.

Thanks anyway. -->>>

Here's the technical answer:

The United States Copyright Act enumerates a series of rights whicha reserved to the copyright owner. Two of these are the right to make copies and the right to preapre derivative works. These rights are absolute and derive from Article I, Section 8 of the Constitution.

Copying a VHS tape to DVD involves making an unauthorized copy, which constitutes copyright infringement as a matter of law. Since making a DVD requires capture and transcoding of the video signal and then authoring it to a different format, it also involves preparation of an unauthorized derivative work, which constitutes copyright infringement as a matter of law.

The U.S. Congress has passed the Audio Home Recording Act (AHRA), which precludes infringement liability for making copies of _audio_ recordings for personal use, i.e. it allows making a cassette of your DVD to play in the car, or ripping your DVD to your MP3 player. However, it applies only to audio -- there is no comparable statute which permits doing the same for DVD.

The business rationales which have been discussed in this thread are relevant to fair use analysis, but not to the fundamental illegality of making unauthorized copies or derivative works. Note, too, that fair use is a _defense_ to copyright infringement, i.e. but for First Amendment interest in allowing the specific use, it would be infringement.

Paul, sadly, this was my assumption. But wouldn't it be fairly easy to argue that the reasons behind the Home Recording Act and format-shifting apply to video content as well?

Of course, one of us would have to get sued to find out, I guess... Any takers?

<<<-- Originally posted by John Britt : <<<-- Originally posted by Aanarav Sareen : Although, people do backup their videos to tape (even movies), it is illegal. -->>>

Actually, from what I understand (and have read in posts from respected members like Paul Tauger), the Tape ->DVD transfer would fall under "format shifting" which is legal -- at least when done privately by the end user (not in a for-profit manner as suggested in the original post).

From what I have read, there is question about the legality of backing up DVDs to DVD-Rs, but converting VHS tape to DVD would fall under format shifting and is legal. -->>>

No -- I never said that!

This is where it gets tricky.

When you buy a DVD, all you own is the physical copy, but not the content. If you copy a DVD to a VHS tape, you have made an unauthorized copy and it constitutes copyright infringement.

In the famous Sony v. Universal case (the "Betamax" case), the Supreme Court held that it is fair use to "time-shift" live broadcasts by recording them to a VCR (actually, the Court held that Sony wasn't liable for contributory infringement for manufacturing a machine that could do this). In reaching its determination, the Court relied on a couple of factual assumptions:

1. The market for the original broadcast not only wasn't hurt, but was enhanced because people who otherwise wouldn't have seen it, could by watching it later on tape.

2. Most people wouldn't use VCRs to amass tape libraries.

Though these facts might have been true when the case was decided, they're certainly not true now. Lots of people have enormous libraries of recorded material, and remote controls allow easy fast-forwarding through commercials. I don't know whether the Court would reach the same finding if the case was tried today.

Notwithstanding, there are some situations which I think _might_ come within fair use, e.g. I'll extract recorded video from my Tivo so that I can watch broadcast programs on my laptop when I fly. The traditional fair use analysis factors support a finding of fair use, i.e. this use is transformative, doesn't hurt the market for the original, is non-commercial, etc. (Note: this is my personal opinion, and not legal advice).

However, copyring VHS material to DVDs _generally_ would fail fair use analysis. The mere fact that format-shifting is involved is _not_ sufficient to satisfy the fair use factors.

Paul -- just to note, I tried to clarify what I wrote in a later post (back on page 1), where I linked to the thread where format-shifting came up (including the post by you that I was referring to) and noted that most of my readings on it were re: audio media and not video. Obviously, my hope is that someone will go read that thread and see what it discussed on their own...

<<<-- Originally posted by John Britt : Paul, sadly, this was my assumption. But wouldn't it be fairly easy to argue that the reasons behind the Home Recording Act and format-shifting apply to video content as well?

Of course, one of us would have to get sued to find out, I guess... Any takers? -->>>

Sure, the rationale is the same. However, the difference is this: Congress authorized format-shifting audio in the form of the AHRA, but hasn't done the same for video. Absent similar statutory authorization for format-shifting video, it remains illegal. Some video format-shifiting may come within fair use doctrine. I can even think of instances when VHS to DVD format-shifting might be deemed fair use. However, in most instances (and in the scenario that started this thread) it would not be fair use and would constitute copyright infringement.

Lets say I want to make a DVD of a series of photographs taken by a professional photographer that were already purchased, as a print on paper.

In theory all that was paid for was the actual print copy, so a DVD copy of that print could be deemed a format shift and one that was not authorized by the photographer.

However, I think the real issue come after a digital copy has been made rather than from the act of making the digital copy. If a digital copy is made in such a way as to make it easy to mass produce the content, that is grounds to try and protect original copyright.

If somebody makes a digital copy strictly for their own use with no intent to reproduce for others, I just don't see that is an issue, whether or not the slow to update media laws address this new technology or not.

This also changes in which country you are, of course. Here it is
fully legal to make copies for personal use of both audio and video,
even if you do not own the original. So I can copy a DVD or video
I rent, legally. And I'm allowed to make as many copies for my
personal use from tapes or DVD's as I want, as long as I make
the copy and it is for me or my family.

This is in the Netherlands.

<<<-- Originally posted by Rob Lohman : This also changes in which country you are, of course. Here it is
fully legal to make copies for personal use of both audio and video,
even if you do not own the original. So I can copy a DVD or video
I rent, legally. And I'm allowed to make as many copies for my
personal use from tapes or DVD's as I want, as long as I make
the copy and it is for me or my family.

This is in the Netherlands. -->>>
I didn't know you were in the Netherlands (of course, I could have just read the "Location" data, but that would have been too easy. ;) ). My wife and I were just in and about Holland last month.

Thank you very much to all who replied and posted! I now have the words to back my side of the debate!

[Quote From John Britt]
"Mark, format-shifting comes up in this thread , which, ironically, includes posts from you :) "

That's funny! I did a search before I posted this thread and that particular thread didn't show up. That was 18 months ago . . . I can barely remember what I did 18 minutes ago!!! :D

Thanks again all. What a great group this is!

Paul: how about that! If we had known we could've met someplace....

Oh well, next time then? <g>