Is it legal to have someone make backups of your music and movies for you?
5 attorney answers
In response to Attorney Ross: "Most experienced lawyers in this field believe that it would be illegal for you to pay someone to make backups of your old VHS and cassette tapes. If you did this yourself, it would be legal, but if someone else receives compensation from you for copying this work on your behalf, they are earning revenues from making copies of copyrighted works, which is plainly illegal."
An "experienced" lawyer in this field would know that the person who pays for the copying to be done [in this case, not unimportantly, the guy who asked the question] engages in no wrongdoing whatsoever. Is the actual copier doing something wrong? Maybe. But what does that have to do with the VHS and cassette owner? Zip. Nada. Nothing. In short, if it's legal for a person to make backups of his or her VHS and cassette tapes [AND IT IS] then its legal for that person to hire someone to do it for him.
As for the entertainment lawyer types who are so sanctimonious about their objections to fair use copying of music and movies for personal in-home use they should heed the words of Don Verrilli (now the new Solicitor General to be) who had this to say to our Supreme Court during oral arguments in the Grokster case:
"And let me clarify something I think is unclear from the amicus briefs. The record companies, my clients, have said, for some time now, and it's been on their Website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod. There is a very, very significant lawful commercial use for that device, going forward." See http://goo.gl/Odz7S at p. 11 line 25 and p. 12 lines 1-7.
Hmm. That's pretty clear. I take Mr. Verrilli and the recording industry at their word that the record labels not only acknowledge and agree that space shifting is not only lawful, the reproduction of a sound recording for personal in-home use is literally the rationale that JUSTIFIES the uploading functionality of mp3 players such as the iPod.
So we have a STATUTE that says making backup copies are lawful, we have Congress EXPRESSLY spelling out in its legislative history that making backup copies are lawful, we have cases that HOLD that making backup copies are lawful, and we have the recording industry ADMITTING that making backup copies are lawful and, moreover, that such fair use is why the iPod is lawful. That pretty much does it for me. Love to hear an argument [rather than sanctimonious hand-wringing] otherwise.
The cases cited by my collegue, while interesting and relevant, are not dispositive. Most experienced lawyers in this field believe that it would be illegal for you to pay someone to make backups of your old VHS and cassette tapes. If you did this yourself, it would be legal, but if someone else receives compensation from you for copying this work on your behalf, they are earning revenues from making copies of copyrighted works, which is plainly illegal.
This is a quite important issue for those of us who represent clients in the entertainment business. Before the development of digital media (i.e., CD's, DVD's etc), many believed that there was a "home copying" exception that allowed people to make copies of record ablums, songs from radio, and/or copies of VHS tapes for personal use. This still remained a subject of some controversy, but in general no one was sued or prosecuted criminally from making copies for personal use. Most people accepted the concept that if an individual bought a song or movie once, he owned the right to maintain possession of this work even if it was necessary to make a backup copy to do so.
Moreover, the "first sale" doctrine generally was construed to mean that once you bought a copy of a record ablum or VHS, you could sell that specific copy to someone else without violating IP rights. In a real sense, people believed that once you paid for a song of other work, you were entitled to keep a copy of it forever, even if you had to make a backup to preserve your copy--unless you sold your copy to someone else, in which case you were not permitted to keep a copy. As long as you didn't make copies for others this was ok. But even in the "good old days", if someone paid you for a copy, and you accepted compensation to make a copy, this was illegal---because now you kept your copy, and you profited by making a copy for someone else.
When we moved into the ditigal era, however, the rules necessarily changed. This is because of the nature of digital media and changes in the economic structure of the entertainment industry. It is much easier today for someone to pirate a copy of a digial work and then resell it for profit. Illegal file sharing and downloading has become an epidemic. Further. there are a plethora of devices on which music, movies and other works can be displayed, from MP-3, lap-top computers, cell telephones, I-Pad's and many others. There is no longer a consensus behind the notion that if you download a song on your I-Phone, you ought to be allowed to make a copy of it and send it to your lap-top computer, I-Pad, or other such device. This is because if we allow people to download and make multiple copies of a song or other work for personal use on a wide variety of devices, it will become virtually impossible to police those who would attempt to send copies of such downloads to their friends, family members and others---whether or not for profit.
Likewise, there is no longer a consensus that the "First Sale" doctrine allows people to sell a copy of songs or other works that they purchase to others. If we were to allow such sales, then there would be no way to stop someone who downloaded a single song from attempting to sell that download to thousands of others, thereby clearly violating copyright law. Thus, the First Sale doctrine does not permit someone to download a song one time, and then sell it to others, or make additional copies to give to friends or family. Such "file sharing", whether or not for profit, is illegal even if the person sharing the file originally paid for his copy.
Can a person copy, or have someone else copy, his lawfully procured analog music and movies from VHS tape and cassette to a digital storage device? YES, so long as the digital file is for private, noncommercial use.
The statute on point is 17 U.S.C. § 1008.
A case that applies that statute is: Recording Industry v. Diamond Multimedia Systems, 180 F. 3d 1072 9th Circ. 1999) (“In fact, the Rio's operation is entirely consistent with the Act's main purpose — the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." S. Rep. 102-294, at *86 (emphasis added). The Act does so through its home taping exemption, see 17 U.S.C. § 1008, which "protects all noncommercial copying by consumers of digital and analog musical recordings," H.R. Rep. 102-873(I), at *59. The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act.”
A case that discusses the “fair use” right to space shift movies and music from one medium to another for personal, noncommercial use is: Realnetworks, Inc. v. DVD Copy Control Ass'n, 641 F. Supp. 2d 913 at 942 (“Against this backdrop, the court appreciates Real's argument that a consumer has a right to make a backup copy of a DVD for their own personal use. … As noted above, the DMCA's ‘user exemption’ is only for the individual who has gained authorized access and who may circumvent the protection measures pursuant to lawful conduct, such as to make fair use of the subject work. … So while it may well be fair use for an individual consumer to store a backup copy of a personally-owned DVD on that individual's computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.”).
I agree with my colleague.
As a similar question was discussed here last week, for additional information, I would point you here:
I am licensed in the Great State of Texas. Any comment made or answer given is not to be considered legal advice under any circumstances, nor shall it be understood to create an attorney-client relationship.
If the videos you have are copyrighted material and you don't own the copyright, then you cannot make copies and you cannot pay someone else to make copies, whatever medium.
There is an archiving exception in the copyright law but that only applies to limited institutions like libraries, and even then it's not so simple.
Now if these are home-movies you made or a family member made and gave you permission to copy, or if you can get permission from the copyright holder, then you can have someone else make copies.