Copying EZ-Ds: Legal?

[ricksummon]

There’s a new DVD rental model that’s being tested right now called EZ-D. These are disks you buy at a convenience store that can be watched for up to 48 hours. After that, a special coating on the disk oxidizes and renders the disk unplayable. My question is, would it be legal to copy such a disk before it dies? Obviously, if the disk is copy-protected, this would be illegal in the US under the DMCA. However, let’s assume for the sake of argument that a title was produced without encryption. How could you be legally prevented from copying a disk that you legally own?

[Duckster]

This issue has been covered before. You may want to do a search.

Also, while you own the physical media (the actual DVD), you do not own its contents. You merely purchased a time-limited license to view the contents. Once the time expires, so does your license and the ability to view the contents.

Even if you could copy the DVD to your own media, you would be in violation of the license and the copyright.

[ricksummon]

I did a search and found only one other thread on EZ-Ds that mentions nothing about legalities. There is indeed a “license agreement” on the disk itself that says you aren’t permitted to make copies, but how can this be legally binding? For software licenses, you have to be able to read the agreement first, then open the envelope or click “I Agree” for it to work. How can it be legal to have a “license agreement” that can only be viewed after the package is opened and the disk is played?

[Valgard]

@ricksummon

I did a search and found only one other thread on EZ-Ds that mentions nothing about legalities. There is indeed a “license agreement” on the disk itself that says you aren’t permitted to make copies, but how can this be legally binding? For software licenses, you have to be able to read the agreement first, then open the envelope or click “I Agree” for it to work. How can it be legal to have a “license agreement” that can only be viewed after the package is opened and the disk is played?

Probably the same way that copyright laws don’t allow you to make a copy of a CD that you buy or a movie that you rent, even though the text of that law may be buried somewhere inside the jewel box or on the media itself. Just because they don’t slap the “license” on the outside of the package doesn’t mean that the law doesn’t apply.

Interestingly enough I’m going up to the state capitol in Sacramento tomorrow to testify before the CA legislature on a bill addressing EZ-Ds and unsolicited commercial CDs. I think that the manufacturers of these things should have to clean up their own mess…any idea as to how many movies are rented each year in this country?

[ricksummon]

Yes, but a license agreement is a civil contract. Both parties must agree to the terms for it to be legally valid. If there’s a section of the Copyright Code which says otherwise, then which one?

[Ms2001]

@Valgard

Probably the same way that copyright laws don’t allow you to make a copy of a CD that you buy or a movie that you rent, even though the text of that law may be buried somewhere inside the jewel box or on the media itself.

AFAIK, making a backup copy of a CD you own (in case the original is stepped on, scratched, oxidized after 48 hours of exposure to air…) is considered fair use. You don’t own movies that you rent, but in this case you do own the self-destructing DVD.

[ricksummon]

Just to clarify, the copyright laws allow a person to make backup copies of media they own for personal use. A license agreement might restrict that right, but it is not part of the copyright law and can only be enforced if both parties agree to the license. (Remember, we’re assuming the disk isn’t copy protected. The time decay isn’t really a form of copy protection, so the DMCA wouldn’t apply to it.)

[Valgard]

@Mr2001

AFAIK, making a backup copy of a CD you own (in case the original is stepped on, scratched, oxidized after 48 hours of exposure to air…) is considered fair use. You don’t own movies that you rent, but in this case you do own the self-destructing DVD.

Yeah but that’s to guard against accident. I think you’d be hard pressed to make the argument that you were somehow surprised that your EZ-D stopped being playable 48 hours after you opened it up. That’s the designed purpose of the thing and you know it when you buy it (so maybe that’s the implicit agreement on your part?). Making a permanent copy is just a way to get around the limitations of what you bought and I assume that some lawyer will make the case that it violates DMCA or something else.

Not that I’m agreeing with the idea behind these things, I think it’s utter waste and a lousy idea (let’s have a moment of silence for Divx, shall we?).

[START]

That EZ-D thing is so stupid and wasteful and just for that fact I’d record the movie onto a video tape rather than trying to burn it, regardless of the WARNING at the begginning of the movie.

[Valgard]

@START

That EZ-D thing is so stupid and wasteful and just for that fact I’d record the movie onto a video tape rather than trying to burn it, regardless of the WARNING at the begginning of the movie.

Which in a court wouldn’t get you very far - “I think the law’s a bad idea so I broke it your honor”.

[ricksummon]

“I think the law’s a bad idea so I broke it your honor”.

But which law is being broken?

[RealityChuck]

@ricksummon

Just to clarify, the copyright laws allow a person to make backup copies of media they own for personal use. A license agreement might restrict that right, but it is not part of the copyright law and can only be enforced if both parties agree to the license. (Remember, we’re assuming the disk isn’t copy protected. The time decay isn’t really a form of copy protection, so the DMCA wouldn’t apply to it.)

No, it doesn’t. The only people who can make backup copies of media under copyright law are accredited libraries. The individual does not have this right (and no, it is not “fair use”). Nothing in the copyright law grants it, and it’s an urban legend that this “right” exists. (And please quote the law if you want to disagree with this).

As for the legalities of copying the DVD, it’s not a matter of any license between you and the copyright owner. It’s copyright law:

§ 106. Exclusive rights in copyrighted works36
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;

Making a copy is reproducing the copyrighted work, and the only person who has this exclusive right is the copyright holder.

So making a copy of any DVD is a violation of copyright. If the copyright holder wanted to sue you for it, you’d have no choice but to pay the judgment.

[Ms2001]

@RealityChuck

No, it doesn’t. The only people who can make backup copies of media under copyright law are accredited libraries. The individual does not have this right (and no, it is not “fair use”). Nothing in the copyright law grants it, and it’s an urban legend that this “right” exists. (And please quote the law if you want to disagree with this).

The EFF disagrees:

Do I have the right to make a copy of my CD for my own personal use?
Yes. The fair use doctrine allows an individual to make a copy of their lawfully obtained copyrighted work for their own personal use. Allowing people to make a copy of copyrighted music for their personal use provides for enhanced consumer convenience through legitimate and lawful copying. It can also enlarge the exploitable market for the rights holders. The fair use privilege’s personal use right is what allows an individual to make a backup copy of their computer software as an essential defense against future media failure.

As you’re no doubt aware, fair use has only a vague definition in the law. This list of criteria on the same page closely mirrors the actual statute:

The copyright statute lists four factors to balance together on a case-by-case basis to determine if a particular use would be considered fair. The law’s language does not preclude consideration of other factors however. The factors to consider include:

0.  The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes.
   

1.  The nature of the copyrighted work -- A particular use is more likely to be fair where the copied work is factual rather than creative.
   

2.  The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.
   

3.  The effect of the use upon the potential market for or value of the copyrighted work -- If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use. 
   

A simple Google search for “personal backup fair use” turns up several other sites claiming that personal copies fall under fair use, and I’ve never heard of any court saying they don’t. There was a decision against 312 Studios’ DVD X Copy program recently, but note:

Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, explained that the DMCA applies only to “protected” digital content, meaning discs that have been encrypted in an obviously unsuccessful attempt to prevent copying. “DVDs are really the first mass market media form that is protected,” he said.

The courts have somewhat ambiguously upheld the right of consumers to copy audio CDs, LP records, and cassettes for their own use, von Lohmann said, “but when Congress enacted the DMCA, it created an entirely different set of rules for media with protected content. Congress has effectively slammed the door on copying next-generation technologies, like DVDs, SACD audio discs, and DVD-Audio.”

Since we’re assuming that the DVD in question isn’t encrypted, I don’t believe that decision applies. Do you have evidence that personal backups aren’t considered fair use?