Could Someone Settle A Debate Please

[Mark Moore]

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!

[Aanarav Sareen]

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.

[Chris Hurd]

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,

[K. Forman]

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...

[Mark Moore]

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.

[Richard Alvarez]

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.

[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.

[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.

[Richard Alvarez]

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.

[Mark Moore]

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!

[John Britt]

Mark, format-shifting comes up in this thread , 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.

[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, 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.

[John Britt]

<<<-- 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.

[Paul Tauger]

<<<-- 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.

[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?