Could Someone Settle A Debate Please

Paul Tauger · March 6th, 2005, 02:40 AM

<<<-- 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.

John Britt · March 6th, 2005, 02:46 AM

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...

Paul Tauger · March 6th, 2005, 02:47 AM

<<<-- 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.

Alessandro Machi · March 6th, 2005, 03:13 AM

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.

Rob Lohman · March 6th, 2005, 03:36 AM

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.

Paul Tauger · March 6th, 2005, 09:49 AM

<<<-- 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.

Mark Moore · March 6th, 2005, 10:01 AM

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!

Rob Lohman · March 7th, 2005, 03:33 AM

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

Oh well, next time then? <g>

March 6th, 2005, 03:13 AM	#19
Alessandro Machi Major Player Join Date: Oct 2003 Location: Los Angeles, Ca USA Posts: 553	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. __________________ https://alexlogic.blogspot.com/ Los Angeles Emmy Winner (yes, used a video edit controller and loved doing so.)

March 6th, 2005, 03:36 AM	#20
Rob Lohman RED Code Chef Join Date: Oct 2001 Location: Holland Posts: 12,514	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. __________________ Rob Lohman, visuar@iname.com DV Info Wrangler & RED Code Chef Join the DV Challenge \| Lady X Search DVinfo.net for quick answers \| Buy from the best: DVinfo.net sponsors

March 6th, 2005, 10:01 AM	#22
Mark Moore Major Player Join Date: Oct 2002 Location: North Carolina Posts: 301	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! __________________ Mark Moore Sugar Free Productions

March 7th, 2005, 03:33 AM	#23
Rob Lohman RED Code Chef Join Date: Oct 2001 Location: Holland Posts: 12,514	Paul: how about that! If we had known we could've met someplace.... Oh well, next time then? <g> __________________ Rob Lohman, visuar@iname.com DV Info Wrangler & RED Code Chef Join the DV Challenge \| Lady X Search DVinfo.net for quick answers \| Buy from the best: DVinfo.net sponsors

March 6th, 2005, 02:40 AM	#16
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	<<<-- 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.

March 6th, 2005, 02:46 AM	#17
John Britt Major Player Join Date: Sep 2003 Location: Atlanta, GA Posts: 621	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...

March 6th, 2005, 02:47 AM	#18
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	<<<-- 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.

March 6th, 2005, 09:49 AM	#21
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	<<<-- 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.