Hi - my name is XXXXX XXXXX I'm an Intellectual Property litigation attorney. Thanks for your question.
Courts all over the country have said that consumers have a right to copy a video (VHS) or DVD for their own, for backing it up to another disk or perhaps watching it on another device, etc. This is allowed under the "fair use doctrine". Thus, you could copy VHS tapes to DVD's for your own personal use.
However, it is not legal to copy a VHS protected by a copyright onto a DVD and sell it for a profit. The moment you make a profit over another's copyrighted material, you have violated the copyright and can be sued and possibly criminally charged under federal piracy laws.
Statutory damages can range from $750 to $30,000, with willful acts punishable up to $150,000. On the criminal side (and these prosecutions are relatively frequent for infringers who do this on a large scale), if more than 10 copies having a total retail value of more than $2,500 is involved, that's a felony. Criminal penalties may include a large monetary fine and a jail sentence of 5 years.
I understand the bit about the DVD copy being sold.
So selling BOTH the VHS tape and DVD copy is illegal? This would imply that selling the VHS original by itself is illegal too, right?
Would the buyer get in trouble for buying the VHS and DVD copy ?
If the VHS is an original, it is not illegal to sell it on the secondary market - - because it's original and not a copy. If the VHS were a copy, it would be illegal to sell it, too.
Also, it would be illegal to sell OR transfer the burned DVD with the VHS - - even if it was given to the buyer with the VHS. This is so because the only way making a DVD is legal is if the person that burns the disc is the one that keeps it. If it is transferred, there is potential legal liability.
Yes, the buyer would get in trouble if he/she purchased a pirated DVD or VHS. The purchase would not be in good faith as the buyer would know that the DVD is not an original.
One final thing, what can the buyer do to fix this situation once the VHS original and DVD copy are delivered and are in his posession?
Would destroying the DVD copy fix this?
I was thinking of sending the DVD back and informing the seller because I am sure he does not know either.
Thanks a lot for your help.
I have a follow up question about buying DVDs online.
I saw a DVD online that I am interested to buy and the seller, confirmed that the DVD is an original and not pirated.
What is the standpoint of the law if I receive the DVDs and it turns out to be pirated? Would the fact that I've asked the buyer to confirm its not pirated mean that I am fine in that case?
Also in general, is it a good idea to always email the buyer to confirm the DVD is not pirated prior to purchasing because this would mean I am showing my intentions are good as far as the law is concerned?
Hi Sam -
Because you asked about the legitimacy of the video before the purchase, you can rely on that and you should be considered to be a buyer in good faith. This means that if the document turns out to be pirated, you would have a defense to any claim against you and you could sue the seller and ask the court to hold him/her responsible instead of you.
It's certainly a good idea to ask this question so you have documented proof that it was represented to you that the item was original and not a copy.
Am I still protected if the seller says he is not sure whether its pirated or not because he bought it from someone else online?
Or would "not sure" mean that I am buying it not in good faith?
If the seller tells you that he/she doesn't know, it's probably best to stay away from it. You could still claim to be a buyer in good faith, BUT you would have no recourse against the seller.
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