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Originally Posted by kane
The work print was leaked, it wasn't released by the studio. So now you are saying that studios should release work prints of their movies with some ads in them to make extra money? You also say " Currently no, however if access shift was established then fair use yes." That means that currently fair use doesn't apply to this product correct? There is no access shift because it wasn't for sale yet anywhere, it was a stolen and leaked copy. A studio shouldn't have to be forced to put ads on their work prints and release them before the regular movie is released just so they can make money from the thieves.
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first of all there is no proof that it was stolen,
three theories on the list is that an employee of the editing company leaked the video
it was thrown out and someone got by dumpster diving
it was a pr stunt by the studio
which it was has not been established
but once released/intentionally or by accident the protection and the responsibilties under the act apply. No one has successfully argued that right of access shifting
although the wolverine work print would be a good test case. because it has nothing to do with lost revenue and everything to do with the company just not wanting people to see that behind the scenes stuff. That being said it appears to be another you can't watch it because we say so not because it cost us money thing. (see timeshifting, formating shifting)
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Well, I guess we will just have to agree to disagree on this one. It says right in the law that fair use is : "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"
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do you see format shifting in that list of rights
do you see timeshifting in that list of rights
no
do those rights exist as fair use rights absolutely. Just because they were not explictly defined in the act does not mean they don't exist/
The courts created them, but it doesn't matter they are just as valid as those explictly defined in the act.
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Please show me where in the fair use law it says that just because something isn't available in your area it is okay to download it without paying. So maybe Wolverine isn't playing in your area in a theater. That doesn't mean it won't be available on DVD to you or on pay per view or even on regular cable. It just isn't there right now. So to argue that you are not taking a sale from them is bogus. Maybe you download the movie because it isn't playing anywhere around you. You watch it. Then a few months later it comes out on DVD. You decide not to rent or buy it because you have already seen it. If you hadn't been able to download it you might have bought it or rented it.
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it comes down to the principle that was established in the court created fair use rights.
Timeshifting was created as a right even though it could have resulted in your not watching the repeat that aired months later.
The fact is at the time that the fair use right was established the act of watching the tv show on tuesday instead of monday didn't cost a sale.
Access shifting makes the same arguement, under a slightly different context (geography instead of time).
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Again I say this all about the entitlement generation wanting it now and wanting it free. Honestly how many people do you think downloaded Wolverine so they could fast forward and see if Black Panther was in the movie? Mr. Skin takes clips from the movie and he provides commentary and criticism with them. You can't watch the full movie on Mr. Skin, you can only see that one scene and he gives you info about the actress and movie. That is what fair use is about. You use part of the movie to comment or critique or make a teaching point. Again, please show me where it says that fair use means you get to have it if it isn't playing in a theater near you.
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fair use is anything that meet the four point test listed under the act
timeshifting is the act that stretched it to it uppermost limits and established in court the only critical condition.
Section 107 also sets out four factors to be considered in determining
whether or not a particular use is fair: - The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
1. sony sold the vcr for 1k so it was obviously commercial
2. the copy was an exact copy of the content broadcast
3. all of the work was copied
4.
no sale was lost on the day the content was timeshifted too because the content was not available for sale on that day even though it potentially cost a sale months later when the show ran in reruns.
timeshifting failed on every one of those points except for the last.
All you have to do to determine if the concept of access shifting is a fair use under the law is to apply the 4 test. If it passes the last one, that really the only one that is important. Does it cost a sale at the time of the infringement.
And quite clearly it does not, just like the vcr and timeshifting.