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Originally Posted by kane
I have to disagree. On the last point you say that "No sale was lost on the day the content was timeshifted because the content was not available for sale on that day." But your 4 point test the criteria is: "The effect of the use upon the potential market for, or value of, the copyrighted work."
po·ten·tial (p-tnshl)
adj.
1. Capable of being but not yet in existence; latent:
So if people download a movie today that is not being shown in their area they are not taking a sale away on that day. However, if 4 months later the company is now selling/renting the DVD in that area and they lose sales because people have already downloaded it then it fails the timeshifting criteria because the potential market has been damaged. If the company doesn't do as many pay per view sales or they don't get as much for first run cable or TV rights in that area because of the downloads then the downloads hurt the potential market.
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here the problem with the arguement you are making
reruns existed at the time the betamax case was happening
the same concept of potential sales being lost at the time should have applied.
in fact the arguement was similarly made
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It rejected respondents' "fear that time-shifting will reduce audiences for telecast reruns,"
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and it was rejected by the court. (people who watched it live, also watched the rerun again when they aired, so timeshifting could not be proven to cost potential sales)
That being said your trying to use current market conditions to invalid an already established right. Tv shows are in fact timeshifted to death. 5/6 of the tv shows cancelled this year died not because they could not find an audience but because the audience doesn't want to watch it live.
access shift get established as a fair use right when the challenge appears in court
once establish it will be there forever even if later on we "discover" that it has detrimental economic impact (see timeshifted to death above).
If you want to stop the right from being formed you have to counter the liciening inequality with fair liciening (think about how much differently the betamax case would have been had the studios responded by fulfilling the timeshifting right by offering video on demand).
access shifting is a response to the abuse of staggered liciencing. While it was ok when there was no technology that allowed world wide simalcast distribution, now that we do have the technology that can provide that using copyright to block access to those locations is just as valid as when studio said you can only watch this tv show on the day i give it to you.
that being said the vcr proves that the gain (home viewing market) more than balances the loss (timeshifted to death).