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Posted by Colin B on 02/09/07 01:43
"PTravel" <ptravel@travelersvideo.com> wrote in message
news:7VIyh.3394$gj4.584@newssvr14.news.prodigy.net...
>
> "Colin B" <Colin B@cb.org> wrote in message
> news:45caea37$1@clear.net.nz...
>>
>> "PTravel" <ptravel@travelersvideo.com> wrote in message
>> news:2pAyh.74431$qO4.34209@newssvr13.news.prodigy.net...
>>>
>>> "Colin B" <Colin B@cb.org> wrote in message
>>> news:45cace63$1@clear.net.nz...
>>
>>>> Now here's a thought, the OP could explain the applicable copyright law
>>>> to his clients and ask them to sign a written agreement which states
>>>> that they are required to take the full risk if legal action should be
>>>> taken as a result of his copying a tape to a DVD.
>>>
>>> And that's why laypeople have no business giving legal advice. Such a
>>> document would do nothing to shield the OP if he got sued for
>>> infringement. You can't contract out liability. If he was sued, the
>>> document is no defense whatsoever.
>>
>> An indemnity of this nature would surely allow the OP to recover from his
>> client the cost of any damages that he was required to pay as a result of
>> a successful legal action against him? It must be better than not having
>> an indemnity at all?
>
> That's what an indemnity does. Copyright infringement suits cost between
> $150,000 and $250,000 to defend. Statutory copyright damages can be as
> much as $250,000 per infringement and may also result in liability for the
> plaintiff's attorney's fees. There may also be issues of trademark
> infringement as well.
>
> How much do you think that indemnification is going to be worth?
It would depend on the net worth of the client, it could be very worthwhile
setting up such an indemnity. But honestly, do you really think that a small
business could be liable for hundreds of thousands of dollars because it
copied one episode of a TV programme from a tape to a DVD? I'm just trying
to get the whole question into proportion. Lots of people would be asked to
help people preserve their old copyrighted VHS tapes by copying them to
another type of media, so I think the question asked by the OP is a really
interesting and worthwhile one. I guess there would not be a serious
problem, if on a one-off basis, a friend copied a tape to a DVD for a person
without making a charge for doing so? But if a business regularly did this
for a profit, then I can see that the business would need proper legal
advice before doing so.
Perhaps the business could apply for copyright approval before making
copies, now there's a novel approach! Or perhaps the client could put the TV
episode on Youtube, thousands of others seem to fearlessly do this. Or yet
again, the client could copy the tape on to his laptop computer so that he
could view it while on holiday.
>> But let's just be clear about what the OP is dealing with here, he is
>> talking about making a copy on a DVD from a tape that was legally created
>> from a TV show. Now this recording could have originally been made on a
>> DVD anyway. The fact that the recording is shifted from a tape to a DVD
>> may be illegal, but surely wouldn't be regarded by copyright holders as
>> something to litigate against?
>
> Again, you're talking apples and oranges. I've been discussing the nature
> of copyright infringement and defenses of fair use. You're talking about
> the likelihood that an infringer will get caught.
Yes there are several different aspects to the risk analysis, the first is
whether it's likely that the infringer will be caught. An individual who
helps a friend to preserve a couple of VHS tapes (by copying them to DVDs)
is perhaps less likely to be caught than a business which copies copyrighted
VHS tapes every day. Then, if the infringer is caught, you might want to
assess the likelihood of whether the copyright holder is going to be worried
enough about the situation to take legal action against the copier. It's
this aspect that interests me most, and that if I was the OP, I would be
asking my lawyer about. After that, if the copyright holder does decide to
sue the copier, then there is the question of whether fair use will be an
appropriate defence. Then there is the aspect of the likely damages if fair
use is ruled to not be an appropriate defence.
> I've said this previously: content owners don't use infringement law
> suits as profit centers. Businesses sue when it makes business sense to
> do sense. My clients frequently sue when they think there is too much
> low-level infringement of their content. When we sue for this reason, we
> generally pick the easiest target.
>
>> IMHO, the format shift is a mere technicality and I would be very
>> surprised if a copyright holder would rush to his lawyer about this.
>
> And your opinion is based on what? Are you a corporate content owner? Do
> you counsel businesses on when and whether they should sue? Are you a
> lawyer?
I don't pretend to be any of the above, I'm just putting myself in the shoes
of the OP and asking the questions that would interest me if I ran a small
business and was asked to copy a few tapes to DVDs, merely because the
subject interests me. But from a common sense viewpoint (if there is such a
thing), if I was a copyright holder, I would perhaps issue a couple of
warnings for very low level offences before leaping in and trying to earn
hundreds of thousands of dollars in damages from the situation.
>> People are copying CDs to Ipods all the time and this situation doesn't
>> appear to be much different to copying from a tape to a DVD????
>
> Copying to iPods is authorized under the AHRA. Video copying is not.
> Once again, don't give legal advice -- you don't know th elaw.
>
>>
>> Incidentally, the OP made it clear that that "nothing posted here on
>> usenet should ever be construed as "real" legal advice", and I agree that
>> my humble thoughts were not intended to be "real" legal advice, but
>> merely things to check out with his own "real" lawyer.
>
> Why should he waste time paying his lawyer to answer questions that have
> no validity? Sorry, you're simply wrong on multiple points, and your
> "opinion," both as to what is the law and how it is enforced is not of
> value to anyone because it is completely uninformed.
My aim in asking a few questions was more so I could learn from the OP's
question, because this type of question crops up quite frequently. I often
ask my lawyer questions that turn out to have no validity, but at least it
gives me peace of mind to hear my lawyer confirm that the questions are
unimportant. But once or twice, my questions that seemed to have no validity
(even to me) turned out to be most important to my lawyer, so I have learned
not to decide myself that things are unimportant, and that I should let my
lawyer do this for me!
Cheers, Colin
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