I'm trying to track the history of the theory that making personal backup copies of DVDs is fair use (ignoring the DMCA). On its face that seems wrong, based on the statute, http://www4.law.cornell.edu/uscode/17/107.html:

"...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

Personal backups are very different from any of these uses. They don't have the nature of critical commentary, scholarship or research. They're just for protection in case the disk breaks.

Then we have the famous four tests:

"the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"

Definitely not nonprofit educational purposes, but not commercial either.

"the nature of the copyrighted work;"

These are commercial works, fully protected by copyright law.

"the amount and substantiality of the portion used in relation to the copyrighted work as a whole;"

The whole thing.

"the effect of the use upon the potential market for or value of the copyrighted work."

If DVDs are as fragile as you say, then people would have to buy new ones when they broke, so being able to make backups could have a substantial impact on the potential market.

The first test is a wash, and backup copies lose on the other three. Where does the belief come from then? The one source I've seen is the 1984 Betamax case, Sony vs Universal, where the Supreme Court held that personal copies of TV broadcasts for time shifting purposes were fair use.

There was one bizarre element to the court's ruling, which was its statement of the first test: "Although not conclusive, the first [464 U.S. 417, 449] factor requires that 'the commercial or nonprofit character of an activity' be weighed in any fair use decision. 32 If the Betamax were used to make copies for a commercial or profitmaking purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court's findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity."

Expressing the distinction as weighing "the commercial or nonprofit character of an activity" overlooks the language of the statute, which distinguishes commercial vs "nonprofit educational" uses. By ignoring the word "educational", home taping becomes much more plausibly construed as passing the first test. It is indeed arguably nonprofit. But is it "nonprofit educational" use? I don't think so! Especially when we look at the first paragraph of the statute, that list of acceptable uses are all oriented around education and research. Personal backup is a completely different matter. Yet this was the foundation for the court's holding on this question.

But even ignoring that flaw, it's not clear that the rest of the court's reasoning can be transported from timeshifting TV broadcasts to making backups of DVDs. In particular, the potential impact on the market is very different in the two cases, since the nature of broadcast over the airwaves is so different from that of a disk which is sold in stores. It's not clear that broadcasters lose anything from time shifting, but closing out the replacement-DVD market could be a bigger deal. At a minimum the Sony analysis must be given a fresh look before we decide that it applies to every case of making a personal backup copy of something.

What other cases should I be looking at to find justification for the doctrine of personal backup as fair use?

Well, this wasn't the point I was making, but I will respond to your posting.

First, to my knowledge, no court has directly addressed the issue of whether or not a backup copy is fair use, but I rather suspect they would.

The use is certainly not commercial and while the statute on fair use talks about educational purposes and what not, it is not an exclusive list. Personal convience is certainly one use courts have found, not only in Sony but in the Diamond Rio case (which was about format shifting from CD to MP3).

The next two factors certainly weigh in favor of the copyright holder, but they aren't going to count for much.

With regard to the potential market, one must consider what aspects of the market a court will be considering. I'm not sure that backing up would be a market the courts would find compelling, except in the case where a device was designed to degrade purposefully (such as those disposable DVDs).

If backups are not fair use, then distributors have a very perverse incentive to make the distribution medium of DVDs as prone to failure as possible. Just think of the possibilities - a company that invests in R&D to make sure that their DVDs fail sooner than the competition, so that they can sell extra copies to customers.

Seems like courts should have no problem affirming a fair use that includes backups, precisely to undermine the incentives for that kind of behavior. Whether they would or not is a different question.

Thanks for the comments. As for the incentive to make things wear out, that applies to all products and not just DVDs. Why don't your computers crash after 24 hours? Why don't your chairs fall apart as soon as you sit in them? If you can come up with an answer to those questions, maybe that will provide some insight into why fair use backups are not necessary to prevent manufacturers from making fail-prone DVDs.