Is copyright still an issue if something's not available anywhere?

It was always my understanding that a true BACKUP copy is fair use and not a violation of copyright law. It becomes illegal when you use that backup for anything else other than a true backup copy, such as loaning to friends to watch or listen to or making copies for them. I could be wrong, as I am not a lawyer. It's probably a gray area and may not ever have been really challenged in court. The temptation to copy is great, as there are so many tools that permit it, even on copy-protected media. Perhaps better pricing on the part of the media companies would decrease that temptation? Other ways of distributing content could help as well. Also, seems to me that after "x" number of years, the copyright should go away if not renewed in some way, especially when it involves obsolete media.
After a certain number of years, some media should go into public domain, unless the copyright is renewed.

First, like you, I am not a lawyer in any form. Second, as you've said, it is the right of the copyright owner to make or restrict availability as one chooses, without relinquishing copyright. Disney is highly noted for this.

Making copies, is a more confusing issue. Under copyright law in the U.S., an individual can make one copy of legally acquired content for archival purposes. That's plain and simple; you can make a backup for yourself so that you can use the backup and preserve the original.

What causes a problem is the DMCA (Digital Millenium Copyright Act) which requires any digital recording device to recognize copy protection and refuse to record it. DMCA also makes it illegal to disable the recognition which, essentially, renders the ability to make an archival copy useless. But all is not lost.

There is a device called the Digital Video Stabilizer. There are a few companies which make it, and each uses a slightly different circuit design, but the effect is the same. During playback,it removes certain components of the video signal, such as composite sync. Macrovision protection happens to be located in the sync region. TV sync circuits don't see it and, so, TV is not affected. Recording devices do see it, which causes sync clamping problems, or distorted video. By removing and replacing the composite sync, copy protection has been removed. Sync is not copyrighted, and so no illegal act has occurred. The use of the Stabilizer is legal as it's nothing more than a Proc Amp, a device mandated for use in TV stations to comply with FCC regulations. Congressional hearings in the early 1990's established the legality of the Digital Video Stabilizer. And, lastly, DMCA has not been violated since the recognition circuitry of any recording device has not been disabled. Stabilizers are not available in stores, on the sole basis that there is not enough demand to warrant inventory. Catalog and online ordering through reputable companies is available, and the cost ranges from $25 - $40, plus probable shipping.

The drawback to such a device is that it's analog and must operate in real-time, which is naturally time-consuming. Also, even though minimal as can be, any electronic pass-thru does degrade resolution, however insignificantly. With VHS, the quality is so inherently poor that the device will not affect it at all.

The same method can be used to make a legal archival copy of a DVD, as well. Again, time and a minutely reduced resolution are the only drawbacks. The point, though, is that there is a legal method to create a copy of an otherwise unavailable video recording.

I might also mention that the simple act of downloading material is not illegal. What's illegal is making copyrighted material available for UPloading, which is the intent behind torrents. In RIAA lawsuits that make the big news, the media incorrectly reports that a defendant lost a case for downloading and must pay massive fines. In actuality, the defendant lost due to leaving the files on the network for uploading.

The same can be said for conspiracy or complicity to download copyrighted material. In order for conspiracy or complicity to exist, there must be deliberate planning and agreement between the supplier of the website and the downloader. A downloader has not planned the creation of the site, nor has agreed to any contract in downloading the material, even by default. Otherwise, every single computer user in the world is guilty of copyright infringement since the computer must download a copy of that site's page in order to view it.

Just had to respond to a comment saying many bands are loosing out on sales to the extent they don't make any money.
It is widely recognised, in the industry, NO bands EVER, make any money on their first two albums, as the record company seeks to recover ALL 'costs' before considering the artists miserly percentage.

A new artist would make more money freely distributing their creations on the internet, using their web page and advertising laxatives for left handed amoeba on Mars.

I've been in printing for nearly fifty years and copyrights have always been a source of confusion to many. As the printer, we can be sued right along with the author when copyrights are infringed. Thus we take extra measures to inform our customers of the issues involved and if we have any doubt at all about the status of material we are being asked to produce, we respectfully decline to print the job.

As far as what is found on the internet, it must be assumed that ALL content is covered by copyright unless there is a specific attached notice that the material has been placed in the public domain or may be reproduced under specific conditions. Any work that is "fixed in a tangible medium of expression" on or after January 1, 1978 is covered for the life of the author + 70 years -- you are not going to outlive it! Technically, that even makes forwarding an email from you mother on to your siblings illegal unless you have her written permission to do so!

Anything published before 1923 is in the public domain. Between then and 1978 it can be a nightmare figuring out if a work was originally copyrighted and by whom, and if so was it renewed. Then the next obstacle is trying to find and contact the copyright holder. In many cases, due to lack of factual information, it is best to just assume that it was copyrighted and the copyrights were renewed.

Privately, as a researcher and author I have been dismayed when my material and photos are copied and redistributed without my permission. Never mind that every printed copy has a notice and every web page has a copyright notice at both the top and bottom and most pictures also carry my individual copyright notice or a notice of my permission to publish the pictures provided by others. In most cases, if I am not selling the information in book or CD form, I am happy to give permission to use my information if credit is given to the source and the use is not for profit.

Leo has done a good job of summarizing the issues.
Many of these issues are in limbo, some are settled.

In federal court, the 9th Circuit has stated that it "may be legal to own a backup of a DVD, but illegal to distribute the tools to make one." There are many legal scholars who believe making "a personal backup copy" is not exempt (i.e., it's illegal), as it has a material impact upon the market for valuable old works distributed in new media.

It is certainly not illegal to record anything "off the air", as was implied by another comment, provided it is only for private, personal use. That is one of the many exceptions in the current laws. Under the Audio Home Recording Act is also NOT illegal to make an "analog" recording from an existing recording that you own. If Congress had meant "digital" copying was also okay, it would have said so.

The validity of copyright of "Happy Birthday" is in dispute, having been published well before 1923 and perhaps not properly marked, registered or renewed. In any case, "performing" a copyrighted song in private (or in church) is not a copyright infringement -- another statutory exemption.

To reply to another comment: "The simple act of downloading copyrighted materials", if they were not legally uploaded, actually IS a copyright infringement. E.g., Virgin v. Thomas, Jury Instructions: "The act of downloading copyrighted sound recordings on a peer‐to‐peer network, without license from the copyright owners, violates the copyright owners’ exclusive reproduction right." It is, in actuality, making another unauthorized copy.

It's true that Thomas was found liable for $1.92M for "infringement" of 24 songs downloaded via Kazaa, but the case also alleged that she had further "shared" those songs on the net, making the verdict ambiguous as to whether the jury would have found the act of MERELY downloading to be an infringement.

Or maybe the jury simply didn't like her because of the evidence that she had repeatedly lied, and tampered with evidence in an effort to avoid being caught, and her having refused a $5,000 settlement offer.

Oddly, many of the best legal arguments were made that her "making them available on the net" was not legally an infringement because it did not constitute prohibited "publication or distribution" of any copies. Success in that argument could mean the music and movie lawyers would stop pursuing uploaders and refocus on downloaders who actually make the unauthorized copies.