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Comment by haroldp | Hacker News Reader

Exactly right. You don't have a license to the CD.

If a work has been given a copyright, the government has granted the holder a temporary, limited monopoly on reproduction of that work. When you buy a CD, you will almost always see, stamped somewhere on it, (c) Copyright $year, $holder, All Rights Reserved. This is not strictly necessary, but they just want to make it clear: No Rights Granted.

The copyright holder has all the rights to the work, and you are granted none beyond "fair use" rights (quoting small portions for critique, backup, resale, etc) defined in copyright law. You specifically don't have a license.

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Lets not forget Fair Use:

TITLE 17 > CHAPTER 1 § 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Fair use would protect your ability to use the software, and to make backup archival copies of the physical CD for use in case the original breaks.

It would not extend to making copies of the software or CD for your friends or coworkers to use.

>>>Fair use would protect your ability to use the software, and to make backup archival copies of the physical CD for use in case the original breaks.

Is that true? It was my impression that (at least in the US) those are not explicit fair uses. Is there a case on point?

> The copyright holder has all the rights to the work, and you are granted none beyond "fair use" rights (quoting small portions for critique, backup, resale, etc) defined in copyright law.

So how do you work the DMCA in there? It's legal for me to make a backup of a copyrighted work... but if the copyrighted work is 'protected' then I can still make a backup copy... but no one is allowed to sell or distribute the means to make that copy?

Couldn't the argument be made that the copyright holder is actively trying to take away my fair use rights by using DRM?

Fair use rights lie in statutory and case law, not constitutional law. The DMCA is statutory law.

What is the definition of statutory law that you're using?

Fair use provisions are part of the US Code. The DMCA is also part of the US Code.

They are part of the Code, but courts test what the code means all the time. Example: before the Sony Betamax case, there were the statutory provisions of fair use, but it was unclear how it applied to home taping.

Oh, well, the DMCA is bullshit, that's how.

My understanding is that the "backup" of a DVD isn't really illegal. However, reverse engineering, or circumventing a DVD's copy protection scheme is. You're guilty of hacking, not copyright violation. IANAL.

The 'technicality' is that you're allowed to create a way to circumvent the DVD's copy protection scheme, but you're not allowed to sell or distribute it. Therefore, anyone that wants to make a backup of their DVDs has to crack the DVD copy protection scheme on their own. They can't (legally) get a product to do it for them.

Exactly. Similarly, when you buy a book, you can't photocopy it repeatedly and sell the copies. You bought one physical copy, and the copyright prevents you from duplicating it.

the copyright prevents you from duplicating it

No, it gives the copyright holder the default right (except when specifically waived) to enjoin you from freely making copies via legal action.

It also causes a number of relatively-narrow federal criminal statutes to automatically apply to persons that the feds find to be infringing on the owner's copyright.

> (except when specifically waived)

Realize that it's pretty hard to put something into the public domain... which is why we have all sorts of licenses like Creative Commons to try and work around the holes in the law.

And those licenses, like all elective copyright licenses are specific (and usually conditional) waivers to some of the rights afforded automatically by post-Berne copyright law.

Even the most draconian shrinkwrap EULAs will specifically grant the licensee the right to install (copy!) the software onto a filesystem of their own, and allow for an operating system to read (copy!) the work into memory and page (copy!) it back to disk in normal operation.

Doesn't the Betamax case specifically say that it's fair use to duplicate things for personal use? I can photocopy the book to keep a backup, I can scan it and put it on my computer, I can put my CDs on my iPod, regardless of what the copyright holder thinks.

But you cant distribute those copies to others.

It doesn't "specifically" say that. If you read the Betamax case, it's clear that the court was looking at the intrinsic qualities of home video taping devices. Time shifting, for example, isn't really an issue with back ups, recorded music, or books. That's not to say that the Betamax case isn't very persuasive when it comes to fair use with other media, but it's not explicit that the holding in that case would apply to other media.

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