Post by RjackPost by Fred GoodwinI know its illegal to tape NFL games and sell those videotapes.
"§ 109. Limitations on exclusive rights: Effect of transfer of
particular copy or phonorecord42
(a) Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of
that copy or phonorecord."
See the "... lawfully made under this title ..." part?
Post by Fred GoodwinBut I'd like to give away my collection at no charge (other than
the cost of shipping) -- is that also a copyright violation? Over
the last ten years or so, I've taped maybe 30-40 football games and
now I find I no longer have room for the tapes (and I don't have
the gear to convert them to DVD). Rather than simply throw the
tapes out (bad for the environment, right?). I'd like to give them
away to a fan who'd like to have them.
This isn't a veiled attempt to auction them off to the highest
bidder -- it would be first-come, first-served to anyone who can
cover the shipping costs.
Still a copyright violation? If so, then is my only alternative to
throw them out? If someone fished them out of the landfill, how
would that be any different than my giving them away?
See the "... lawfully made under this title ..." part?
Well, note that copyright.gov doesn't quite agree with such a plain
reading (see footnote 468 below):
http://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf
"Given our view that, in the typical situation,462 the making of backup
copies is probably a fair use, we see a risk to copyright owners under
current law that those backup copies could then be distributed without
legal consequence. We believe that outcome would be fundamentally
unfair463 and, notwithstanding the ambiguity of the 1976 House Report on
this point, contrary to congressional intent. Nonetheless, we cannot
overlook the possibility that a court would hold this way. When added
into the balance, this element tips the scale in favor of statutory
change.
We therefore recommend that Congress either (1) amend section 109(a) to
ensure that fair use copies are not subject to the first sale doctrine;
... It would, however, require that a separate fair use analysis be
applied to the distribution of that particular copy. The fair use copy
could be transferred only in those cases where the distribution itself
qualified as a fair use.468
468 In some cases, the making of a copy may be a fair use in large part
because the copy is not disseminated to third parties. For example, in
Sony, the Supreme Court held that it was a fair use for a private
citizen to record a television program off-the-air for purposes of
time-shifting, which the Court described as the practice of recording
a program to view it once at a later time, and thereafter erasing it.
464 U.S. at 423. The personal nature of that use was critical to the
Courts analysis. See, e.g., 464 U.S. at 449 (the District Courts
findings plainly establish that time-shifting for private home use must
be characterized as a noncommercial, nonprofit activity). The fact that
the making of a personal copy for purposes of time-shifting (and with
the anticipation of subsequent destruction of the copy) is fair use
should not make it lawful subsequently to sell, rent or give that
lawfully made copy to a third party."
regards,
alexander.
--
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