Can I Make a Backup Copy of a CD or DVD that I Own?

Recently, a new law went in effect in the UK that makes it lawful to copy copyrighted DVDs, CDs and other copyrighted material, as long as it is for personal use.  See Copyrights and Rights in Performances (Personal Copies for Private Use) Regulations and Copyright.  The law allows a purchaser of a copyrighted work, such as a DVD, to make a backup copy or store it on the cloud, provided that the purchaser is not distributing the work to others.  This begs the question, is this practice legal in the U.S.?

U.S. copyright law states that the copyright owner has the exclusive right to reproduce the copyrighted work (17 U.S.C. § 106).  There are a few exceptions to the rule for making a backup copy of a work.  Copyright law allows a purchaser to make copies of software for two purposes: (1) A user may make a copy to utilize the software, for example, if the software must be loaded onto a computer hard drive to work, and (2) a user may make a backup copy of the software (17 U.S.C. § 117(a)).  In addition to software, U.S. Copyright law allows libraries to make a copy to replace a lost, damaged, stolen, deteriorating, or obsolete copy (17 U.S.C. § 108).  However, the library exception is narrow and only applies when a library cannot obtain a replacement copy any other way.  Other than these narrow exceptions, making a backup copy is not specifically allowed.
Furthermore, the Digital Millennium Copyright Act specifically prohibits circumventing encryptions or safeguards to prevent copying (17 U.S.C. § 1201).  For instances, many DVDs feature copy protection so that the disc cannot be copied.  Circumventing these protections is a copyright violation.

What about fair use?

The copyright statute contains an exception to the exclusive right reproduce a work for “fair use” (17 U.S.C. § 107).  Occasionally, a court will decide that certain types of copying constitutes a “fair use.”  For example, in Sony Corp. v. Universal City Studios, the Supreme Court ruled that “time-shifting,” i.e. recording a television program and watching it later, was a “fair use.”  In MGM v. Grokster, the defendants raised the issue that “space-shifting,” or copying a digital file from a CD to a laptop or MP3 player, was a “fair use.”  However, the court decided the case on other grounds, and never ruled definitively whether “space-shifting” was a “fair use.”  More recently, in Macrovision v. Sima, the court stated “this Court is aware of [no authority] for the proposition that “fair use” includes the making of a backup copy.”  Therefore the short answer to the question “Can I make a backup copy of a CD that I own? Is no, not in the United States.

Will I ever be able to make a copy?

There have been several attempts to legalize the practice of creating a backup copy.  The Digital Media Consumers’ Rights Act of 2003 and reintroduced in 2005, and the Fair Use Act of 2007 both attempted to expand fair use to creating a backup copy.  Both bills died in committee, and never made it to the House floor.  Maybe someday the United States will pass a similar law, but probably not in the near future.

©2014 Buche & Associates, P.C..  This article was written by Jennifer Blanton, J.D.  Buche & Associates, P.C. is a law firm with offices in San Diego, Los Angeles and Houston that specializes in litigation and prosecution of patent, trademark and copyright matters.