Copyright Law & Video Copying
Copyright law gives creators the exclusive right to distribute, sell and perform their creative products. This exclusive right is subject to the fair use privilege, which allows copying of lawfully-obtained videos for personal use. Regardless, anyone who copies DVDs can incur civil and criminal penalties under the Digital Millennium Copyright Act (DMCA) anti-circumvention provisions.
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History
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Analog video tapes In 1984, several film and television studios sued Sony over analog video copying. The studios claimed Sony was liable for contributory copyright infringement because it manufactured Betamax VCRs. These devices could be used by consumers to record copyrighted television programs and movies. The Supreme Court ruled that most people copied these programs and movies so they could watch them later, and that this "time-shifting" was fair use, not copyright infringement. Since the VCR was capable of substantial non-infringing uses, the Court ruled Sony's manufacture of this device was not contributory infringement.
Fair Use
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Fair use is a defense to copyright infringement. Examples of "fair use" are listed in Section 107 of the U.S. Copyright Act and include criticism, news reporting, teaching and research. This section also lists four factors a court may balance to determine whether copying constitutes "fair use": the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole and the effect of the use upon the potential market for the copyrighted work. It is generally accepted that the fair use doctrine allows for personal copying of lawfully-obtained videos.
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Digital Copying
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Unlike analog video copying, digital copying produces an identical copy with no recognizable decline in quality from one copy to the next. Digital copies are also less time-consuming to create and easier to store and transfer. Quick, easy access to free digital copies means that fewer people will purchase DVDs or pay for access to premium television channels. For these reasons, digital copying poses a much greater threat to the profitability of the film and television industry than analog copying did.
File Sharing
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Advances in computer technology and the Internet have made it possible to copy a video and post it on the Internet, allowing anyone in the world to access and download a virtually perfect copy of the film for free. Websites and file-sharing services are available to facilitate users' sharing of these files with one another. The Motion Picture Association of America estimates this digital piracy costs the entertainment industry $3 billion per year.
The DMCA
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The entertainment industry reacted to these technological advances by using Digital Rights Management (DRM). All DVDs are encrypted to prevent anyone from copying them for any reason. The DMCA prohibits creating or using programs designed to bypass these DRM protections and copy the work. Creating or using such a program can result in civil penalties (including payment of attorney's fees, damages and costs) and criminal penalties (up to $500,000 in fines and five years imprisonment).
Anti-Circumvention and Fair Use
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The anti-circumvention provisions contain exemptions for nonprofit libraries, archives and educational institutions, for research and for law-enforcement and intelligence activities. There is no exemption, however, for personal uses, such as "time-shifting," which have been judicially incorporated into fair use. Thus, although a user's copying may constitute fair use, that user could still incur civil and criminal penalties as a result of his circumvention of DRM protections.
Consumer Fair Use Issues
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Consumer advocacy groups, including the Electronic Frontier Foundation (EFF), argue that the DMCA should be consistent with the fair use doctrine, and that noncommercial consumer fair use should be allowed under the DMCA.The entertainment industry contends circumvention is unlawful regardless of the reason, unless statutorily exempted. Under this interpretation, it is questionable whether any CD or DVD recording device would be legal for consumers. As of April 2010, no court has ruled on the constitutionality of the DMCA anti-circumvention provisions.
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References
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