Copyright law [LWN.net]

Copyright law

Posted Nov 12, 2020 9:18 UTC (Thu) by ldearquer (guest, #137451)
Parent article: The RIAA, GitHub, and youtube-dl

I always thought the copyright law was all about redistributing. So, if I am given a copy of some work, I can only use it privately. I still can make copies, as long as I keep them private.

But in this case, copies are offered for free by using a browser. The content is already downloaded, and a copy is in my machine. So what if I use program Z or Y to store it locally, play it backwards, invert the color or whatever I want, as long as I don't redistribute it?

Kind of like recording TV programs

Copyright law

Posted Nov 12, 2020 12:19 UTC (Thu) by Wol (subscriber, #4433) [Link] (30 responses)

> So what if I use program Z or Y to store it locally, play it backwards, invert the color or whatever I want, as long as I don't redistribute it?

Because actually, copyright is nothing to do with distribution and everything to do with copying. I can buy a book and lend ("distribute") it to all my friends, so long as it's the original each time. I HAVEN'T COPIED IT.

What I can't do is buy a CD, put it in my library, and make a copy of it for my car so that if my car gets broken in to I don't lose the original.

And this is why, when computers and copyright meet, things get extremely messy. Because the normal operation of computers REQUIRES making copies. Temporary copies, permanent copies, the law doesn't care. IT'S ILLEGAL by default. Which is why software comes with licence agreements, giving you permission to make the copies you need to use the software.

Nowadays, it's made simpler (and murkier) by "implied permission" - if you *need* to make copies, then you have default permission for those copies AND THOSE COPIES ALONE. But one only has to read the piece by the author of youtube-dl to know that what may be called "necessary" by one person is called "reckless disregard for the law" by someone else ...

Cheers,
Wol

Copyright law

Posted Nov 12, 2020 14:09 UTC (Thu) by rsidd (subscriber, #2582) [Link] (20 responses)

> What I can't do is buy a CD, put it in my library, and make a copy of it for my car so that if my car gets broken in to I don't lose the original.

Actually it's perfectly legal to make a copy of a CD for personal, non-commercial use. Even the RIAA says so. This is long-established.

The DMCA criminalizes this if you are circumventing access controls -- including on a DVD that you bought legally to play on your own computer, without making any copies. CDs have no access controls and the DMCA does not apply.

Copyright law

Posted Nov 12, 2020 14:58 UTC (Thu) by geert (subscriber, #98403) [Link] (6 responses)

I thought the access controls on a DVD prevent the _playback_ of the DVD, not its copying?

Copyright law

Posted Nov 12, 2020 16:28 UTC (Thu) by Wol (subscriber, #4433) [Link] (5 responses)

No :-(

They mess about with a lot of stuff, and commercial DVDs won't copy - I've tried.

Cheers,
Wol

Copyright law

Posted Nov 12, 2020 18:57 UTC (Thu) by nybble41 (subscriber, #55106) [Link] (4 responses)

It's not that the commercial DVDs are uncopyable so much as the blank, writable DVDs lack the specific storage region needed for the CSS keys. As such, you can't burn an encrypted DVD image to regular retail DVDs (such that the resulting DVD can be played back) regardless of where it came from—that includes not only copies of commercial discs but even ones you created yourself. The anti-copying measure isn't actually in the commercial discs but rather in the blanks. It doesn't prevent anyone from extracting a bit-for-bit image of an encrypted DVD, but that doesn't do you any good unless you have the industrial equipment necessary to produce discs with the CSS keys included.

DVD anti-copying measures

Posted Nov 15, 2020 4:41 UTC (Sun) by giraffedata (guest, #1954) [Link] (3 responses)

So that's what prevents making a physical copy, but what prevents you from making a usable copy of the content on a flash drive or whatever is the encryption. That's the technological measure you have to circumvent to make that kind of copy.

If the encryption just stopped you from playing the DVD, I don't think DMCA would have much to say about it.

What takes most people by surprise about DMCA is that if you circumvent the encryption just to play the DVD, not to copy it, you're still in violation of the DMCA, because you are circumventing a technological measure that also prevents copying.

DVD anti-copying measures

Posted Nov 15, 2020 6:12 UTC (Sun) by nybble41 (subscriber, #55106) [Link] (2 responses)

> …what prevents you from making a usable copy of the content on a flash drive or whatever is the encryption.

The encryption doesn't prevent you from making a copy of the (still encrypted) content of the DVD on a flash drive. It only prevents you from playing the video from that copy, since it would need to be decrypted first. The only official, licensed systems that can decrypt the DVD content for playback will not accept encrypted input from a flash drive, only from commercial DVDs, so having a bit-for-bit copy of an encrypted DVD on a flash drive doesn't help. Still, CSS would be more accurately classified as protection against unauthorized *playback* rather than unauthorized *copying*.

DVD anti-copying measures

Posted Nov 15, 2020 17:45 UTC (Sun) by giraffedata (guest, #1954) [Link] (1 responses)

I think I could make a case that the content protected by copyright is the movie, not the bits. A copy of encrypted bits that can't be played is not a copy of a movie, so encryption is a device that prevents copying.

Sometimes engineers, with their view inside the machine, have a rather different perspective on copyright law than authors and copiers.

DVD anti-copying measures

Posted Nov 15, 2020 18:25 UTC (Sun) by geert (subscriber, #98403) [Link]

So my dm-crypted hard drive does not contain any movies, as the RIA* cannot play them?
Well played ;-)

Copyright law

Posted Nov 12, 2020 16:26 UTC (Thu) by Wol (subscriber, #4433) [Link] (4 responses)

The RIAA has no jurisdiction over copyright law. And it doesn't apply here either (hint - the second A stands for America - a *foreign* country).

Until Parliament legally sanctioned copying that sort of stuff for personal purposes, it was illegal. "fair use" is something that doesn't exist in Berne, so that was no use ...

Cheers,
Wol

Copyright law

Posted Nov 12, 2020 17:22 UTC (Thu) by rsidd (subscriber, #2582) [Link] (3 responses)

True, laws differ across jurisdictions. This is about an American law (DMCA) and American companies/associations (RIAA, Google/Youtube, Microsoft/Github).

Copyright law

Posted Nov 12, 2020 17:29 UTC (Thu) by Wol (subscriber, #4433) [Link] (1 responses)

That may be true. But the OP I was replying to said copyright law was not about copying ... ??? (And I did quote him, didn't I?)

And I did say *I* couldn't copy a CD ... :-)

The "unread comments" page does rather hide context ... :-(

Cheers,
Wol

Copyright law

Posted Nov 12, 2020 21:01 UTC (Thu) by mathstuf (subscriber, #69389) [Link]

> The "unread comments" page does rather hide context ... :-(

There is an option (which I use) to include the parent comment of any new comment thread for at least some context.

Copyright law

Posted Nov 19, 2020 0:57 UTC (Thu) by dannyobrien (subscriber, #25583) [Link]

Though note that DMCA 1201-like provisions exist in most countries now: see our blog post "the Github youtube-dl takedown isn't just a problem of American law".

Copyright law

Posted Nov 12, 2020 22:16 UTC (Thu) by ldearquer (guest, #137451) [Link] (7 responses)

> The DMCA criminalizes this if you are circumventing access controls

OK, that explains a lot to an ignorant folk like myself.

Does it mean, in US, it is not legal to - just saying - record with a camera whatever is being played on your own TV set, on your own home, through your paid subscription or whatever, to keep a copy for yourself?

To me it sounds like forbidding nose picking :)

Copyright law

Posted Nov 12, 2020 22:55 UTC (Thu) by himi (subscriber, #340) [Link] (3 responses)

There are lots of things you can get away with if no one realises you're doing them, and there are things you can get away with if no one cares because it has no impact on the rest of the world. The specific provisions of the DMCA (and the conventions that they implement) are targeted at cases where the vendor has tried to stop you from doing things via some technical mechanism, but you've worked around that restraint - it gives the technical mechanism implemented by the vendor the force of law, even if no one ever knows that you're doing it, let alone it having an impact on the rest of the world. You still have the protection of obscurity - if no one ever knows you did it they can't do anything about it. But if the technical mechanism you're circumventing includes a phone-home provision then you're screwed even then.

As the experience with CSS on DVDs demonstrates, it doesn't even have to be an effective mechanism, and it doesn't have to give any consideration to other parts of copyright law which might make it entirely legal to work around the mechanism - basically, they can take you to court and demand large sums of money (based on penalties intended to deter commercial pirates), and you then have to make a positive case to justify your particular personal use case.

Copyright law

Posted Nov 13, 2020 2:56 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link] (2 responses)

It's not quite as simple. RIAA can sue individuals who break CSS to watch DVDs. But it's likely to be tossed out with prejudice, since RIAA won't be able to show any damages.

What they _can_ do is suing the software publisher that created the tools to work around CSS.

Copyright law

Posted Nov 15, 2020 23:23 UTC (Sun) by himi (subscriber, #340) [Link] (1 responses)

There were statutory damage rules involved somewhere that meant you could be liable for fines even if there was no evidence of actual harm - I can't recall if that was associated with the direct infringement or with contributory infringement, but it was definitely used to target people who were just seeding torrents, and I'm pretty sure there were cases early on where people had to invoke the first sale defence to avoid liability for breaking some of the dumb-arse CD copy protection schemes that existed. But one of the things that came out of the early court hearings on this stuff was case law that imposed more reasonable restrictions on liabilities if there was no commercial motive behind the infringement, which put a stop to a lot of the ridiculous behaviour by the record companies.

The current state of the law is quite significantly different to what it was back in the early 2000s, not because of amendments to the written law, but due to the build up of case law and precedent.

Copyright law

Posted Nov 16, 2020 8:39 UTC (Mon) by farnz (subscriber, #17727) [Link]

The key change AFAICT (and I'm not a lawyer, nor based in the USA, so take this with a pinch of salt) is that case law has established that you need to show that damage exists before you can choose between actual damages and statutory damages. Statutory damages exist in US law to cover the case where the actual damages are hard to establish (pirates don't keep the greatest records), and it was a stretch to have them cover cases where no actual damages existed.

Copyright law - making copies for personal use

Posted Nov 15, 2020 5:05 UTC (Sun) by giraffedata (guest, #1954) [Link] (2 responses)

No, you cannot legally make a copy of a TV broadcast under US copyright law, even for personal use.

The "fair use" exception for making copies for personal use is for making an additional copy of something of which you already own a copy. It doesn't cover creating a copy from a public performance. (It wouldn't cover making a copy of a friend's DVD for your own personal use either).

A famous court case shortly after the invention of the home video recorder tested the limits of that restriction and resulted in a ruling that you can't record a TV program even if you're just going to watch it once the next day and then delete the copy.

Copyright law - making copies for personal use

Posted Nov 15, 2020 5:48 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link] (1 responses)

> No, you cannot legally make a copy of a TV broadcast under US copyright law, even for personal use.
You absolutely can. Time-shifting was ruled legal by the SCOTUS: https://en.wikipedia.org/wiki/Time_shifting#History_in_th...

Copyright law - making copies for personal use

Posted Nov 15, 2020 17:32 UTC (Sun) by giraffedata (guest, #1954) [Link]

I stand corrected, and thank you for the correction.

You know, I read that Wikipedia article just before posting and between then and when I hit publish, I forgot the result of the case.

Good thing it does not disturb my main point, since the only reason that case went to the Supreme Court is that recording TV broadcasts generally isn't allowed.

Copyright law

Posted Nov 12, 2020 22:07 UTC (Thu) by ldearquer (guest, #137451) [Link] (8 responses)

If the law incorporates an exception for private copies, it is pretty much all about redistributing.
Granted this exception may not be common across jurisdictions.

Copyright law

Posted Nov 13, 2020 0:20 UTC (Fri) by Wol (subscriber, #4433) [Link] (7 responses)

What do you mean by "redistributing". The exception in English law says you can have copies AS LONG AS YOU ALSO HAVE THE ORIGINAL.

To me, "redistribution" means giving copies to friends etc. They don't have the original (I do), so those copies are illegal!

If I have both the original and the copies (the only legal possibility), then that's not redistribution! And if I give the original away, I have to destroy the copies as they are no longer legal.

Cheers,
Wol

Copyright law

Posted Nov 13, 2020 11:56 UTC (Fri) by anselm (subscriber, #2796) [Link] (3 responses)

To me, "redistribution" means giving copies to friends etc. They don't have the original (I do), so those copies are illegal!

Here in Germany we get to give an (unspecified) limited number of copies of music CDs we own to friends and family (not random strangers). In theory there's a surcharge on CD-ROM burners and blanks that is distributed to the artists, composers, music publishers etc. as compensation.

Copyright law

Posted Nov 13, 2020 12:54 UTC (Fri) by anton (subscriber, #25547) [Link] (2 responses)

The surcharge is reality, and we also pay it on hard disks, printers and probably many other things. And your GEMA and our AKM gets the money (based on the theory that they represent all the authors, artists, etc.) and distributes some of it to its members.

Copyright law

Posted Nov 13, 2020 14:48 UTC (Fri) by anselm (subscriber, #2796) [Link] (1 responses)

AFAIR the GEMA surcharge on CD-ROM media applied to “audio-quality” CD-ROM blanks (which are otherwise identical to standard CD-ROM blanks). I don't think anyone uses these any longer.

Historically, CD-ROM blanks were not exclusively used for copyrighted music – when the idea was new, CD-ROMs were popular as backup media, for sharing family photographs with relatives or sending them off to be printed, etc., and people reasonably objected to having to pay GEMA for the privilege of storing their own stuff on their own CD-ROM blanks.

Copyright law

Posted Nov 13, 2020 17:07 UTC (Fri) by jem (subscriber, #24231) [Link]

I'm not German, but this Wikipedia article lists surcharges on DVD media, external hard drives, MP3 players, PCs, Mobile phones, set-top boxes, scanners and printers, etc.

This is a bureaucratic system, and unfair to users which don't use these products for storing copyrighted material. The system also doesn't make sense with dwindling prices per gigabyte on external media. If the charge is ~2 cents per gigabyte for CD-R, then, for the same price per byte, it ought to be 200 € for a 10 TB hard drive. How about 20000 € for some future 1 PB media? Should cloud storage also be affected?

The same system was also used in Finland until the end of 2014, at which point it was abandoned completely.

Copyright law

Posted Nov 13, 2020 14:18 UTC (Fri) by ldearquer (guest, #137451) [Link] (2 responses)

> What do you mean by "redistributing". The exception in English law says you can have copies AS LONG AS YOU ALSO HAVE THE ORIGINAL.

That was my whole point. I see I failed to word it properly :)

I was saying, I always thought the copyright law is all about distributing copies. Once you have an original, you can *not* make copies and distribute them. But you can make (private) copies and keep them for yourself (for your car, etc).

So, you can make copies, but not distribute them

So I thought youtube-dl use was OK as long as I don't make copies and distribute them. Because I was not aware of further restrictions imposed by DCMA.

Copyright law

Posted Nov 13, 2020 19:04 UTC (Fri) by Wol (subscriber, #4433) [Link] (1 responses)

It's not "further restrictions imposed by the DMCA". The default position of copyright law is you cannot make any copies full stop. Not for personal use. Not for backups. Not even temporary copies required to run programs.

That's why things like software licences appeared - so people could legally run their programs. And all the exemptions about personal copies.

The DMCA was an attempt to criminalise what was already illegal - making unauthorised copies of commercial DVDs. (Made all the more complicated by the American concept of "fair use" and people saying "making backups is fair use".)

Cheers,
Wol

Copyright law

Posted Nov 13, 2020 22:37 UTC (Fri) by ldearquer (guest, #137451) [Link]

> I was saying, I always thought the copyright law is all about distributing copies. Once you have an original, you can *not* > make copies and distribute them. But you can make (private) copies and keep them for yourself (for your car, etc).

s/copyright law/status quo of copyright law plus applicable private copies exeptions (existent in most jurisdictions)/

Copyright law

Posted Nov 15, 2020 15:32 UTC (Sun) by ceplm (subscriber, #41334) [Link]

> So what if I use program Z or Y to store it locally, play it backwards, invert the color or whatever I want, as long as I don't redistribute it?

You get sued as long as RIAA decides they don’t like you. And who has more money to pay lawyers, you or RIAA?