Copyright Infringement and Shoplifting Contrasted

awesomeO4001 wrote in to mention a post to Karl Wagenfuehr's blog where he compares and contrasts the penalties for copyright infringement vs. shoplifting. From the post: "...from what I can tell, the penalties laid out for downloading one season of a TV show with BitTorrent are much harsher than if you actually stole a DVD set of the same show from a government store...For stealing the DVD you could face no more than up to 1 year imprisonment and up to a $100,000 fine; for downloading the same material you could face statutory damages of up to $3,300,000, costs and attorney's fees"

Comments

Re:Potential Redistributable Files

[Not_Wiggins]

Given you are a lawyer and I am not, I'll bow to your expertise over my arm-chair knowledge. What I've put out there was from reading opinions on the topic, not the law itself.

Now, given that, I did go back to the document I pseudo-linked to to find the sections that gave me the opinion I stated. Given it is just a summary of the DMCA and not the text of the DMCA itself, I'll qualify my statements as saying it isn't going to be from as authoritative a source as you have available to you. Also, please pre-forgive the use of "copying" over "reproduction," as they seem prefer that word in the pdf.

From the pdf (starting bottom of page 3):

Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of of a copyrighted work. "Copying" is used in this context as a short-hand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act. Consequently, a technological measure that prevents unauthorized distribution or public performance of a work would fall in this second category. ... As to the act of circumvention in itself, the provision prohibits circumventing the first category of technological measures, but not the second. This distinction was employed to assure that the public will have the continued ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying.

To me, this states that "copying" isn't a violation of the copyright when the copying of work may be fair use under appropriate circumstances.

Where I'd need your guidance in getting the correct answer is in asking: is making an archival backup of material you've licensed a violation of the copyright? Is it illegal for me to make an archival copy of a DVD I bought in the store?

Depending on your answer to that is where I'd have to follow up and ask: since downloading of material is using an electronic means of "copying," if I own a license to the material I'm "copying," is it really a violation of the law? Hence, is the act of downloading copyrighted materials really infringement if I already have the right to access that material?
It seems clear that making a copy and distributing it is always a violation. But just because I downloaded it (instead of making the archival copy from my own disc) isn't necessarily breaking the law... or, is it?