DMCA Backup of Copyrighted Content

By Angela Floyd

You want to make a backup copy of a DVD that you bought. The DVD is copyright protected, and the copyright holder has encrypted the DVD to prevent you from making a copy. In the U.S., under the Digital Millennium Copyright Act, if you hack or crack the security measures of a copyrighted work to make your copy, you are violating the law and can be sued.

DMCA Basics

The DMCA is designed to prevent unauthorized copies, or backups, of copyrighted digital works, including movies, music and books. How does the DMCA work? Many digital works are encrypted, or locked, so you cannot make copies; this is the concept of digital rights management, or DRM. So, under the DMCA, it is illegal for you to circumvent technological codes and encryptions that control reproduction of copyright protected work. The DMCA also makes it illegal to make or distribute technology, devices or services intended to circumvent measures that control access to copyright protected work. That means it is illegal for you to break through DRM locks or create the tools to do so to make your copies, even for personal use, such as backup copies.

Copying Copyrighted Content

Prior to DRM and the DMCA, you could make backup copies of your legally purchased CDs and DVDs so you could play them at home, at work, in the car or on portable devices, or to store backup copies. This copying was not necessarily legal; in fact, the law has never been clear on the legality of copying copyrighted material for personal use. Making backup copies of digital works that you legitimately owned for private, noncommercial use was, however, considered a fairly acceptable practice -- certainly widespread -- and DRM did not exist to stop you.

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What the DMCA does, through DRM, is make the circumvention illegal, not the actual copying. So, now, even if you own your DVD and are trying to make a personal copy for when, not if, your children scratch the original, or you want to make a copy to watch on your computer, it is illegal to bypass DRM protection measures to make your backup. Circumvention means avoiding, bypassing, removing, deactivating or impairing a technological measure without permission from the copyright owner. This includes bypassing iTunes DRM to copy the music files you bought or using software to break DRM locks to copy DVDs.

Fair Use

DRM and the DMCA target piracy and protect copyright holders' interest in digital goods that are so easy to copy and distribute. But you are not a pirate; you just want to make a backup copy of a DVD that you bought and own. Isn’t this fair use? As of now, not likely. The traditional exemptions for fair use – limited, unauthorized use of copyright protected materials for purposes such as critical reviews, scholarly materials or classroom presentations – do not apply to the DMCA’s circumvention provisions. Your backup copy for your own private use is not now considered among these purposes.

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Copyright Law: Making Personal Copies


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