# Questions about Fair Use laws and backup copies **URL:** \ **Category:** Factual Questions\ **Created:** [August 23, 2002, 9:46pm UTC](https://boards.straightdope.com/t/questions-about-fair-use-laws-and-backup-copies/125299 "2002-08-23T21:46:34Z")\ **Posts on this page:** 5\ **Page:** 1
**Author:** ![CaveMike](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cavemike/32/16379_2.png) [@CaveMike](https://boards.straightdope.com/u/CaveMike)\ **Post date:** [August 23, 2002, 9:46pm UTC](https://boards.straightdope.com/t/questions-about-fair-use-laws-and-backup-copies/125299/1 "2002-08-23T21:46:34Z")
I believe the Fair Use laws allow me to make backup copies of copyrighted material in case my original gets destroyed. 1. Do the laws specify that I make the copy from _my_ original? 2. Do the laws specify that I make the copy onto the _same_ media as the original? For example, I have an audio cassette of music. 3) Could I make a backup audio cassette using a friend’s CD? 4) Could I make a backup audio CD using my original audio cassette. Thanks for any help. And, of course, I acknowledge that any responses to be no more legally binding than a reading from Miss Cleo. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [August 24, 2002, 1:27am UTC](https://boards.straightdope.com/t/questions-about-fair-use-laws-and-backup-copies/125299/2 "2002-08-24T01:27:16Z")
> [@](#): > > \*Originally posted by CaveMike \* > \*\*I believe the Fair Use laws allow me to make backup copies of copyrighted material in case my original gets destroyed. \*\* Mistake #1. Unless you are a library (section 108), making a backup copy is not allowed. (It’s certainly not fair use, which makes absolutely no mention of making backup copies – see section 107 of the copyright law.) This should be clear, since software often specificially grants you the right to make a backup. If you had the right, they wouldn’t have to grant it to you, would they? > [@](#): > > 1. Do the laws specify that I make the copy from _my_ original? The law specifies that only the copyright holder can make a copy. They have the exclusive right to determine who can do so. > [@](#): > > 1. Do the laws specify that I make the copy onto the _same_ media as the original? Since you can’t make a copy, this isn’t relevant. However, getting into the specific example: > [@](#): > > For example, I have an audio cassette of music. > 3) Could I make a backup audio cassette using a friend’s CD? Yes. This isn’t because it’s a backup copy, but because recording a cassette, while technically a copyright violation, cannot be grounds for an infringement claim. Blank cassettes can be used for a legal copy because a payment is made on every sale to pay for copying. > [@](#): > > 1. Could I make a backup audio CD using my original audio cassette. No. CDs are not licensed media (I’m blanking on the actual term here, but that’s the concept). No fee is paid for copies, so no legal copies can be made. And calling is a “backup” has no relevance to the infringement. ---
**Author:** ![mblackwell](https://avatars.discourse-cdn.com/v4/letter/m/5fc32e/32.png) [@mblackwell](https://boards.straightdope.com/u/mblackwell)\ **Post date:** [August 24, 2002, 1:54am UTC](https://boards.straightdope.com/t/questions-about-fair-use-laws-and-backup-copies/125299/3 "2002-08-24T01:54:06Z")
Who cares what the law says. As long as it is morally ok (you dont let anyone else use the copies) I would do all of those except the friend’s CD one. ---
**Author:** ![Ms2001](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ms2001/32/18463_2.png) [@Ms2001](https://boards.straightdope.com/u/Ms2001)\ **Post date:** [August 24, 2002, 3:19am UTC](https://boards.straightdope.com/t/questions-about-fair-use-laws-and-backup-copies/125299/4 "2002-08-24T03:19:42Z")
> [@](#): > > \*Originally posted by RealityChuck \* > **Mistake #1. Unless you are a library (section 108), making a backup copy is not allowed. (It’s certainly not fair use, which makes absolutely no mention of making backup copies – see section 107 of the copyright law.)** According to the [EFF](http://www.eff.org/cafe/gross1.html), > [@](#): > > 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. From the same page, and also appearing on other explanations of fair use and in the law itself: > [@](#): > > 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: > > 1. 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. > > 2. The nature of the copyrighted work – A particular use is more likely to be fair where the copied work is factual rather than creative. > > 3. 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. > > 4. 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. My interpretation of those factors is that a personal copy for archive purposes is indeed fair use. However, IANAL and I’d be interested to see if fair use provisions have been applied to personal backup copies in court. As for software, [Title 17, Chapter 1, Section 117](http://www4.law.cornell.edu/uscode/17/117.html) of the US Code specifically allows backup copies of software: > [@](#): > > Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided … that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. > [@](#): > > \*\*No. CDs are not licensed media (I’m blanking on the actual term here, but that’s the concept). No fee is paid for copies, so no legal copies can be made. And calling is a “backup” has no relevance to the infringement. \*\* Audio CD-Rs, the kind you use with a home stereo CD recorder, are indeed ‘licensed’. That’s why they cost more than regular CD-R media, you’re paying for a flag that says part of the media’s price went to the recording industry. (See the Audio Home Recording Act of 1992, section 1008.) ---
**Author:** ![CaveMike](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cavemike/32/16379_2.png) [@CaveMike](https://boards.straightdope.com/u/CaveMike)\ **Post date:** [August 24, 2002, 3:30am UTC](https://boards.straightdope.com/t/questions-about-fair-use-laws-and-backup-copies/125299/5 "2002-08-24T03:30:47Z")
Thanks a lot **RealityChuck** for both answering my question and setting me straight on the backup issue. > [@](#): > > This isn’t because it’s a backup copy, but because recording a cassette, while technically a copyright violation, cannot be grounds for an infringement claim. Blank cassettes can be used for a legal copy because a payment is made on every sale to pay for copying. This part of your response leads me to another question. Are there parties that receive money for blank cassette sales in exchange for agreeing not to make copyright infringement claims?