Duplicate DVDs?

The Digital Millennium Copyright Act has laid down the law on copying DVDs

By Carrie Russell -- School Library Journal, 6/1/2004

Are librarians allowed to make backup copies of software programs and DVDs for archival purposes? If we make copies, are we allowed to circumvent the protection devices? Also, are teachers allowed to make backup copies for their classrooms? What does the Digital Millennium Copyright Act (DMCA) have to say about all of this?
—Elizabeth Hamming, librarian, Lynden (WA) High School

It is true that libraries, teachers, or other owners of computer programs can make one backup copy for archival purposes as long as the archival copy is destroyed "in the event that the continued possession of the computer program should cease to be rightful." However, it is not true that libraries can make copies of DVDs to create noncirculating archival copies. This is a common misunderstanding. One can make copies of DVDs if fair use applies (Section 107), a replacement or preservation exemption applies (Section 108), or a teaching exemption applies (generally Section 110).

The DMCA, an amendment to the copyright law, limits what one can do with a digital work. Circumventing protection devices that protect access to a work is a violation of the law. The DMCA also says that one can circumvent a copy-control measure if one is exercising a copyright exemption, such as fair use or the right to make a backup copy of a computer program for archival purposes. But things get tricky: it is against the law to create circumvention devices that bypass access or copy controls. So it may be difficult for a library to break a copy control, even for lawful reasons.

The Technology, Education and Copyright Harmonization (TEACH) Act, another amendment to the copyright law, allows teachers to make copies for instructional purposes in a very roundabout way. (This exemption only allows teachers to make backup copies for teaching purposes.) If the teacher needs to make a copy of a DVD that is protected with access or copy controls, he should use an analog copy instead, such as video. If it is necessary for teaching purposes that the copy is in digital form (for example, a teacher needs to pinpoint specific scenes of a DVD in order to meet his teaching objective) and the only available digital copy is protected by access or copy controls, then the teacher may take the analog format (back to the video) and transfer that copy to a DVD format (but only for use in the classroom). But sometimes the digital format is the only format available or it offers special features that are not available on video. If this is the case and the digital resource is protected by access or copy controls, you're out of luck. TEACH exemptions do not apply.

However, fair use would probably apply in this scenario. But creating a circumvention device solely to bypass a copy control—which one may have to do in order to exercise fair use—is a violation of the DMCA. Can you circumvent technology without having a device to do so? Maybe. Perhaps you can just scribble on the back of the DVD with a black marker to remove any copy controls. And probably, a black marker would not be considered a circumvention device because it has other non-infringing uses. As you can see, the DMCA is complex and controversial. There are pending court cases that may shed light on how we should interpret the DMCA, and our own behavior will also shape how the law is applied.

In your December 2003 column, you stated it's legal to create a compilation of favorite songs from CDs that one owns. Is it legal to give the compilation CD as a gift?
—Deborah Casson, library aide, Olive Branch Middle School Library, New Carlisle, OH

People give compilation CDs as gifts all of the time, yet they are not taken to court for copyright infringement. Nonetheless, creating a compilation to give to another person is probably beyond "personal fair use" and therefore an infringement. In addition, the first-sale doctrine does not apply because first sale is an exemption to the right of distribution of an owned work, not a copy of an owned work. I can give you a CD that I purchased. But I cannot make a copy of my CD or create a compilation and then give you that copy—unless, of course, some other copyright exemption applies. I know of no litigation addressing this issue.