Copyright?

[aciddose]

Exactly my point - you seemed to have been confusing "having the right to make a copy" with "every copy is illegal".

No, I haven't. The license you are granted doesn't necessarily grant those specific rights required to make backups.

Making a copy is making a copy, regardless of the manner in which you do it. A right can be granted broadly, but this will not tend to hold up in court. Rather you'll find that most contracts are specified explicitly.

For example, quick search result: http://office.microsoft.com/en-ca/produ ... 76343.aspx

How can I use the software? We do not sell our software or your copy of it – we only license it. Under our license we grant you the right to install and run that one copy on one computer (the licensed computer) for use by one person at a time, but only if you comply with all the terms of this agreement. Our software license is permanently assigned to the licensed computer. Please refer to the Additional Terms for licenses and conditions that are specific to certain countries, Limited Rights Versions and Special Editions of the software. The components of the software are licensed as a single unit. You may not separate or virtualize the components and install them on different computers. The software may include more than one version, such as 32-bit and 64-bit, and you may install and use only one version at a time. Except for the permitted use described under "Remote Access" below, this license is for direct use of the software only through the input mechanisms of the licensed computer, such as a keyboard, mouse, or touchscreen. It does not give permission for installation of the software on a server or for use by or through other computers or devices connected to the server over an internal or external network. The software also is not licensed for commercial hosting. For more information on multiple user scenarios and virtualization, see the Additional Terms.

Are there things I'm not allowed to do with the software? Yes. Because the software is licensed, not sold, Microsoft reserves all rights (such as rights under intellectual property laws) not expressly granted in this agreement. In particular, this license does not give you any right to, and you may not: use or virtualize features of the software separately, publish, copy (other than the permitted backup copy), rent, lease, or lend the software; transfer the software (except as permitted by this agreement), attempt to circumvent technical protection measures in the software, reverse engineer, decompile, or disassemble the software, except if the laws where you live permit this even when our agreement does not. In that case, you may do only what your law allows. When using Internet-based features, you may not use those features in any way that could interfere with anyone else's use of them, or to try to gain access to any service, data, account or network, in an unauthorized manner.

You can go ahead and read the actual linked document if you want more, but it does go on and on and on and on making everything very explicit.

Do you have the license agreement that came with your music CD?

[aciddose]

So what is the case law regarding people being prosecuted for making backup copies of musical recordings that they purchased legally? Because I have read about a lot of copyright infringement cases and they all center not on making copies but on distributing copies.

I don't require links to Westlaw or anything, just the names of a case or two.

Thanks

Case-law is required to clarify how to handle issues that are not already explicitly specified by the law. In this case, you are not allowed to make a copy unless you have a license to do so.

So, if you have a license agreement that came with your musical recordings purchased legally, you can read that document to see if you have been granted this or other rights.

If not, the default is that those rights are reserved by the original rights holder.

The reason the majority of infringement cases with regard to music center upon distribution is that otherwise the damages awarded would not come close to paying for lunch for even one of the lawyers involved.

If you want cases of "making backup copies for personal use from a licensed copy", look at the countless cases related to software.

It is an awful lot of effort to invest to look these up, and I'm not willing (why even posting?) to dispute this on some internet forum wasting whole days of effort.

If you are interested in checking yourself, I do not know the name of the case but I recall multiple where a corporation purchased standard licenses for use by employees and made back-up copies (virtualization, back-up non-operating stock machines, ...) without license. The plaintiff argued that this required a special license, not a standard license. I believe significant damages were awarded and the corporation was required to buy the proper license in addition.

The arguments were mostly regarding the fact these virtual copies or "idle" back-ups were not actively being used, therefore did not require a license. I can't tell you how that worked out exactly but I remember the judge didn't buy that one.

[sjm]

Exactly my point - you seemed to have been confusing "having the right to make a copy" with "every copy is illegal".

No, I haven't. The license you are granted doesn't necessarily grant those specific rights required to make backups.

Making a copy is making a copy, regardless of the manner in which you do it. A right can be granted broadly, but this will not tend to hold up in court. Rather you'll find that most contracts are specified explicitly.

In case you are not aware, a contract does not supersede law.

That's why most contracts include a severability clause that ensures that the remained of the contract retains its validity even if portions of the contract are invalid (which generally is the case if they contravene local law).

Local law always trumps a contact - if this weren't the case, you could take out a contract with a hitman containing provisions that state that the act of assassinating the target shall not constitute a breach of law. I doubt I need to tell you that that won't hold up in court.

That means that what is generally going to be relevant here is local law, as this will contain blanket provisions on whether personal backups are permitted (although if the license explicitly permits them, you're obviously also in the clear). Of course "local law" depends very much on where you are. Remember, Canadian law only applies to Canada; what Canadian copyright law says has no bearing on anyone outside of Canada.

Now I am best acquainted with European copyright legislation (and obviously not the legislation in every single country). In relation to the first point above, there recently was a ruling that clearly established that a software EULA does not trump local law and consumer's statutory rights.

Our local legislation also states quite clearly to what extent personal backups are allowed - unfortunately I doubt you'll understand them given that they are neither in English nor in French, so I'll skip the link. I can however provide you with a link in English (http://www.ipo.gov.uk/copyright-guidance-consumers.pdf) outlining upcoming changes with UK copyright law that will allow you to make personal copies (e.g. rip CDs etc.), which will bring UK copyright law more in line with copyright law in other European countries.

What’s changing?
Copyright law is being changed to allow you to make personal copies of media
(CDs, ebooks etc) you have bought, for private purposes such as format shifting
or backup.

So in summary:
* Canadian law does not apply everywhere
* Canadian copyright law apparently sucks; lobby your local political representative for change
* Many countries do differentiate between copying A and copying B (personal backup vs piracy)
* Local legislation trumps contracts/licenses

[aciddose]

Actually it looks like Canadian law is being applied in the EU now, so in fact it does apply everywhere

If you have local law that grants certain rights to you under certain terms, that is fine. That however is not something you can generalize when you're speaking about copyright in general.

In general, making a backup is not allowed unless you have been granted that right. Whether by exclusion, grant by law, or by contract.

I didn't write a whole legal document when I made my post saying this originally, but we can see why lawyers find it necessary to do this now can't we?