Quote:
Originally Posted by Kevin-SFBucks
First of all.. you act as if Fair Use doctrine is concrete and infallable and everything I have ever seen defines it as tough to delineate.
As shown below are some of your critical points. Yet you neglect some of the key words... private.. non-commercial... later viewing. TPB is a commercial enterprise. They advertise for a profit. They are not doing this out of the goodness of their hearts. They are utilizing a marketing scheme to make money linking to the delivery method for which people come to their site. (your argument of time-shifting is covered, but there is no agreement by the court that you have the right to deliver the content in question to anyone else. That is re-distribution... and is a very sketchy area)
|
your deliberately ignoring that fact that they are not sharing the file they are sharing the torrents.
one more time
torrent = vcr
swarm = backup
TPB = walmart
if they were hosting the copyright material then your would be valid
Quote:
1- The purpose of the use. Is it for commercial or nonprofit education purposes? #1 Theft, #2 to promote the torrent site and justify their advertising, #3 (or even lower down the line) to allow legitimate users to back up content (which is laughable as the rips in many cases are for current content or active content less than a few months old. Who loses their content this fast?????? NaughtyAmerica has rips up from last week. Adobe Photoshop CS3 is available and it has been out how long? CHECK
2- this nature of the content being transferred is on the whole creative rather than factual... Check. We are not making documentaries of seals here.. we are making movies.. entertainment.
3- The amount and substantiality of the work being used in comparison to the work as a whole. The amounts being taken are the entire work. This is not comparable to the marketing materials we provide. It's entire photo sets. it's entire video sequences and episodes. All of it. Not a small percentage. Check
4- The effect of the use upon the potential market or value of the work. Lets see... total anihilation of the market for the work perhaps? 50% drop? more? I would say this is a CHECK also.
as taken from http://www.eff.org/IP/eff_fair_use_faq.php
|
It is amazing how you are trying to deliberately twist the facts to meet your claim
the problem is it is total BS
IF Pirate bay was actually distributing the content you would be right but they are not they are distributing a file which points to the content. At best you could argue they were guilty of a contributory infringment (which only exists under US law) but to do that you would have to argue that the actual USE of the torrents must be an infringement.
Quote:
3. How Do You Know If It's Fair Use?
There are no clear-cut rules for deciding what's fair use and there are no "automatic" classes of fair uses. Fair use is decided by a judge, on a case by case basis, after balancing the four factors listed in section 107 of the Copyright statute. The factors to be considered include:
In addition, in 1984 the Supreme Court held that time-shifting (for example, private, non-commercial home taping of television programs with a VCR to permit later viewing) is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.)
|
again the key point is that Sony was making money for selling the technology and not actually doing the infringing. The courts ruled in their favor (eliminating the liablity) because the technology has a fair use (time- shifting)
just like VCR i can use torrents to time-shift content for private non-commercial use. Ergo just like Sony TBP actions are non infringing.
(if walmart sells a VCR to a person who uses them to make bootleg copies of VIDEOS WALMART is not liable for that infringement)
This covers the downloading of files using torrents. (which is half the transaction)
Quote:
Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses:
Space-shifting or format-shifting - that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, "ripping" an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)
Making a personal back-up copy of content you own - for instance, burning a copy of an audio CD you own.
|
i can also use online backup services for the backup, i can back up to tape it is not only burning to cd that is protected.
as i pointed out the swarm is a backup
so if i have a right to the content and i upload it to the swarm to create a redundant backup of my personal content i am performing a non infringing act
Again as in the betamax decision the creator (sony)of the technology was not guilty of any time of infringment
and neither is the seller of that technology (walmart)
likewise the creator of the technology is not guilty (bit torrent creator) or anyone who profits from the distributions of the technology (TPB)
IT is only by misrepresenting the TORRENT as actually containing copyright material do you create an infringement. Which is what MPAA, RIA and you are trying to do.