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Posted by PTravel on 02/09/07 02:51
"Colin B" <Colin B@cb.org> wrote in message news:45cbd298$1@clear.net.nz...
>
> "PTravel" <ptravel@travelersvideo.com> wrote in message
> news:7VIyh.3394$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?
Yes. Read the statute. Statutory damages are up to $250,000 per
infringement. I notice, however, that you're using the British spelling of
"program." If you're in the UK, nothing I say is applicable -- I'm not
familiar with UK copyright law, other than with respect to its conformance
with the Berne Convention.
> 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.
The issue isn't transferring VHS to DVD, but transferring protected
expression on VHS to DVD. The question is valid. I've provided the legal
answer. I really don't know why we're debating this, as it isn't a close
question.
> 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?
It's still infringement. You're confusing the likelihood of getting caught
with the legal ramifications of the act.
> 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.
Look, people commit copyright infringement all the time. I do when I make
DVDs of our travel videos for my wife and mother- and father-inlaw; I always
buy CDs of local music and use them for soundtracks. Note, though, that
those videos that I do that have greater exposure, for example on youtube
and at my website, do not contain any infringing material -- I use only
licensed royalty-free music for my publicly-distributed projects.
Any business that involves intellectual property rights needs legal
advice -- that's how I spend my work day: advising businesses about the
legal ramifications of what they do. I also give my clients business advice
(that's why lawyers are called "counselor"), and based on that they perform
their own risk assessment. I don't question their decision -- as long as
it's an informed decision, it is entirely theirs to make.
>
> Perhaps the business could apply for copyright approval before making
> copies, now there's a novel approach!
I doubt that they'd get it, even assuming they knew who to ask. It's not
always obvious.
> Or perhaps the client could put the TV episode on Youtube, thousands of
> others seem to fearlessly do this.
Just like the thousands who fearlessly downloaded mp3s from peer-to-peer
networks. A percentage of them were sued, much to their sorrow.
> Or yet again, the client could copy the tape on to his laptop computer so
> that he could view it while on holiday.
Just as I do. I don't however, do it for anyone else, nor would I ever
consider running a commercial business that offered this service.
>
>>> 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.
The first is whether what is being done is infringement. The second is the
likelihood of getting sued -- not of getting caught. Mother Theresa could
have committed de minimus non-commercial infringement to her heart's
content -- the business cost (not the financial cost) of suing her would
have virtually guaranteed immunity.
> 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.
That's almost certainly true, as it's highly unlikely that the copyright
owner would know, just as the copyright owners of the music on the foreign
CDs I use for soundtracks on my personal videos are not likely to ever know.
That's an entirely different question than whether a copyright owner would
be likely to sue if they did know. You'd be surprised, though, how my
clients learn of the existence of infringers. In one instance, one of my
clients learned about some teenage kid who was porting over the client's
console computer games to hard drives for friends (and friends of friends,
and friends of friends of friends . . .). The whistle blower was, we
think, an angry ex-girlfriend who dropped an anonymous note to the client.
I won't reveal the details other than to say that a lawsuit proved
unnecessary. I won't say, however, that one wasn't in the offing if the
infringement continued. How much money do you think we would have collected
from some teenage kid after we won the law suit (and we would have)?
> 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.
And, unfortunately, it's this aspect about which I think you're most
unclear. You, like many people, think that if damages are de minimus a
copyright owner won't be inclined to sue. That is very, very wrong. This
is what I tell my clients: if the amount the value of the intellectual
property right will be diminished by infringement is greater than the cost
of the litigation, then it makes sense to sue. That's the only calculus:
value of the right versus cost of litigation (of course, the latter also
subsumes an estimate of likelihood of success). If there are a lot of
deminimus infringers, e.g. as was the case with the RIAA and DirectTV, the
cumulative impact on the value of the IP is great -- great enough to justify
litigating against "example" defendants. When choosing an example
defendant, you pick the one least able to defend himself, i.e. without a lot
of money to mount a defense, or insurance coverage for indemnification. A
few years ago, I sued a small-scale (but particularly brazen) infringer for
one of my clients. I got a $3.5 million judgment against him which he
couldn't possibly pay. His business went bankrupt as a result but, because
he was also named as an individual defendant (and part of the judgment is
not dischargeable in bankruptcy), it will follow him for life. I only have
to renew it every 10 years. This sent a very clear message to others like
him -- my client hasn't been bothered with this level of infringement since.
These are business decisions that get made every day by content producers
and licensees. Unless you work with them regularly, you won't be familiar
with the decision process involved in determining when, whether and who to
sue.
> 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.
And that question can only be answered by an attorney. Fair use is too
arcane a doctrine for laypeople to predict an outcome, though they often try
and are almost always wrong. A fair use determination cannot be made based
on the plain language of the statute, "guidelines" published by the U.S.
Copyright Office, summary articles on university websites or wikipedia. It
can only be made with reference to the entire corpus of decisional law,
accompanied by a thorough understanding of the jurisprudence that underlies
intellectual property law, generally, copyright, specifically, and the
decisional process of the federal district court.
> Then there is the aspect of the likely damages if fair use is ruled to not
> be an appropriate defence.
For most small businesses and individuals, the potential damages liability
is virtually irrelevant. Copyright litigation will cost $150,000 to 250,000
for competent representation -- more if the issue presented is complicated.
Even if you win, you're out of pocket for that amount (attorneys fees for
the prevailing party are very difficult to get in copyright litigation).
Does it really matter to most individuals or small businesses whether they
will wind up paying $150,000 or $1,500,000? Neither figure is affordable.
I see, from your spelling of "defence" that you are in the UK. There, the
prevailing party can receive an award of attorneys fees. The calculus is,
obviously, somewhat different than in the US.
>
>> 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.
Sorry, but I have to laugh whenever I see someone say, "from a common sense
perspective. . ." in the context of a discussion about law. As I
indicated, it is quite common to sue for what common sense might consider a
"low level offense."
>
>>> 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.
Indeed, it does, and I've answered, literally, dozens of times on this
newsgroup (and several times in this thread). I don't mind, at all,
answering questions of general interest though, when it's the same question
over and over again, I'll usually give a short hand answer along with the
suggestion to utilize google. What I'm not willing to do, though, is argue
with someone about whether I'm right. My clients pay many hundreds of
dollars an hour for my opinions and analysis -- they never argue with me and
always thank me for the value provided. I'm not inclined, at all, to argue
the validity of my assertions about intellectual property law on the
internet with laypeople who are not my clients.
> 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!
Exactly! And you pay your lawyer for this service. I also answer questions
that may have no relevance or significance for my clients -- that's one of
the things for which they pay. However, I answer those questions in the
context of providing representation, that means, among other things,
ascertaining fully the client's specific circumstances. I never do that
here because I'm not providing representation. I'm merely answering
questions of general interest that are sufficiently arcane that the average
layperson wouldn't know the answer.
>
> Cheers, Colin
>
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