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« Um.. What happened to "One backup copy allowed"?  
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funchords
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reply to fiberguy
Re: Contract Law

said by fiberguy See Profile :

to this day, distributing copyrighted material is not legal.
That's simply not true, either. While distribution is called an exclusive right of the copyright holder, there are exclusions and defenses that make certain transfers under certain conditions legal.

Under Fair Use, I can't publicly publish the whole movie at full quality while it's still making money for the owner.

But there are several legal things I can do.

For example, if I took content from a movie and used a small part of it in a review that I posted in 320x240 format online, then some or all of those acts are legal. I probably don't need anyone's permission to download it (although this is the part that I'm not totally convinced of). I know that I don't need anyone's permission to use it in the review or to publish my review.

I can also ask my daughter to dig into my storage boxes, dig out my DVD's of "Adam-12" and have her upload them to me.

The four factors, all of which are subjective, are
1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

As fair as my ISP is concerned, my business is my business. This alone is why DMCA notices ought not be used by anyone to assume that a copyright violation is occurring, or at least why users should reply back to their ISPs concerning them. (Under the DMCA, you don't need to "take down" anything that you're legally using.) But the second reasons ISPs ought to shove back against DMCA notices is the studio's widespread abuses of them -- attacking fair uses as if they had more rights that they have under the copyright act.

All that said -- I doubt the vast majority of this is about Fair Uses, and people ought to follow the law or change it. Ignoring it just extends the problem.
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SilverSurfer

join:2007-08-19

said by funchords See Profile :

said by fiberguy See Profile :

to this day, distributing copyrighted material is not legal.
That's simply not true, either.
Creative Commons licensing should also be included in the smacking down of erroneous information spewed by ignoramuses.

RadioDoc
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reply to funchords
Very nicely put. There are a lot of copyrighted works which the copyright owner has passed their distribution rights to the public domain. Shareware and freeware software, thousands of written and performed works, etc. The list would be enormous. Just because a work is copyrighted does not automatically make distribution illegal.

I could copyright this post.
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jmuskratt

join:2000-11-21
New Orleans, LA

reply to funchords
quote:
I can also ask my daughter to dig into my storage boxes, dig out my DVD's of "Adam-12" and have her upload them to me.
Under the DMCA, you can't. In order to copy them, you have to break the CSS, thus violating the DMCA. Fair use or no, the DMCA probits defeating copy-protection mechanisms.


MrMoody
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1 edit
No, and no. The DMCA doesn't trump fair use (yet), and doesn't prohibit the actual breaking of copy protection (yet). It only prohibits distributing technology to do it with.

In any case many public domain DVDs aren't encrypted anyway.
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RadioDoc
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Real Networks is in the process of being sued by the Big Six studios over its DVD ripping software due out next week. Real claims it does not violate DMCA since it does not permit distribution beyond the computer the file is ripped to. Nevertheless, the suit has been filed. Whether this will have any effect on DMCA interpretation regarding copy protection avoidance is anyones guess at this point but it does show how jumpy the MPAA et. al. are about this.
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MrMoody
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They are violating the DMCA by distributing cracking technology. The user is not.

jmuskratt

join:2000-11-21
New Orleans, LA

reply to MrMoody
Yes, using DeCSS, which you need to rip a DVD, does.

17 USC Sec. 1201. Circumvention of copyright protection systems

(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES- (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

. . .

(e)(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that;

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

(3) As used in this subsection —

(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and


kamm

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reply to MrMoody
said by MrMoody See Profile :

No, and no. The DMCA doesn't trump fair use (yet), and doesn't prohibit the actual breaking of copy protection (yet). It only prohibits distributing technology to do it with.

In any case many public domain DVDs aren't encrypted anyway.
Actually it DOES prohibit the circumvention of CP machanisms - which clause alone renders the whole DMCA illegal - EXCEPT certain cases though.
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RadioDoc
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reply to MrMoody
It is not 'cracking technology' though according to Real. It allows a 'fair use' transfer from one media to another, not the creation of another copy of the work. This is some murky (and deep) water.
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MrMoody
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1 edit
reply to jmuskratt
said by jmuskratt See Profile :

Yes, using DeCSS, which you need to rip a DVD, does.

17 USC Sec. 1201. Circumvention of copyright protection systems

(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES- (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
Hmm, seems I was wrong about that.

But in any case:
quote:
(c) OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
So cracking is not infringement if you otherwise had the right to make a copy, which means the cracking itself would have to be criminally prosecuted. Would never happen to a private citizen making personal fair use copies, there'd be too much political fallout.

So the *AAs have to concentrate on preventing the enablers ...

(edit)
Chamberlain v. Skylink, 2004:
quote:
"The plain language of the statute ... requires a plaintiff alleging circumvention (or trafficking) to prove that the defendant's access was unauthorized-a significant burden where, as here, the copyright laws authorize consumers to use the copy of Chamberlain's software embedded in the GDOs that they purchased."
I read that as saying as long as you are authorized to access the DVD, you are authorized to crack it.
--
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jmuskratt

join:2000-11-21
New Orleans, LA

Again, not entirely correct.

Making a backup copy for personal use *may be* legal fair use.

Using DeCSS to break the protection to make that copy, violates the DMCA.

So, if your Adam 12 DVDs didn't have CSS, then you'd be ok. Now whether there'll ever be a prosecution for using AnyDVD or DVD43, I can't say. The DMCA, however, does render otherwise legal fair use into banditry.

From UNIVERSAL CITY v REIMERDES:

We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. Although the Appellants insisted at oral argument that they should not be relegated to a "horse and buggy" technique in making fair use of DVD movies,36 the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.


funchords
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said by jmuskratt See Profile :

Again, not entirely correct.

Making a backup copy for personal use *may be* legal fair use.

Using DeCSS to break the protection to make that copy, violates the DMCA.

So, if your Adam 12 DVDs didn't have CSS, then you'd be ok. Now whether there'll ever be a prosecution for using AnyDVD or DVD43, I can't say. The DMCA, however, does render otherwise legal fair use into banditry.

From UNIVERSAL CITY v REIMERDES:

We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. Although the Appellants insisted at oral argument that they should not be relegated to a "horse and buggy" technique in making fair use of DVD movies,36 the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.
Sorry, but not based on that case.

Quoting the ever fallible Wikipedia,
The particular facts and litigation posture of the defendants was pivotal in this case. The district court found that the "primary purpose" of the defendants' actions was to promote redistribution of DVDs in violation of copyright laws, because the defendants admitted as much. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 346 (S.D.N.Y. 2000). The finding was upheld by the Second Circuit Court of Appeals on the specific facts of the case, but the appellate court left open the possibility that different facts could change the result. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001), at footnotes 5 and 16.
In my example "Adam-12" case, and assuming that it is CSS-scrambled, I have the permission to decrypt -- I purchased and own my copy, which must be decrypted in order to display the work. Secondly, I'm not circumventing anything, because the copy protection isn't intended to block me from content that I bought the rights to play. Thirdly, the copyright holder doesn't have any exclusive rights that I'm violating (17 USC 106 prohibits reproduction by copies - plural). Forth, never in history that I'm aware has a copyright holder prevailed against any person who made and used a backup copy without any further violation of the copyright holder's exclusive rights. Finally, if all of those arguments fail, I still hold a fair use argument because my activity will have zero market impact.
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Doctor Four
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reply to funchords
It isn't just the studios and the major recording labels that are misusing the DMCA. Increasingly, it is being used as a tool to silence dissenting opinions. $cientology lately have been notorious for abusing it, getting some 4000 anti-CoS Youtube videos taken down, claiming copyrights. Well after counterclaims, most of those videos are back up.
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fiberguy
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reply to RadioDoc
said by RadioDoc See Profile :

It is not 'cracking technology' though according to Real. It allows a 'fair use' transfer from one media to another, not the creation of another copy of the work. This is some murky (and deep) water.
.. and for once, we agree.
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Forums » Cox Employs 'Three Strikes' DMCA PolicyScammers »
« Um.. What happened to "One backup copy allowed"?  


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