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Originally Posted by gideongallery
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
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).
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But then it comes down to what the content is. Sure you can argue that timeshifting doesn't hurt a TV show and people will watch a repeat because they missed it the first time it aired or they will record it and watch it later. BTW when the shows are canceled the networks don't take the people who record or download the show into consideration for the ratings. Why? Because most of those people don't see the commercials. If you download the show it will have the commercials taken out of it. If you Tivo it you are most likely going to fast forward past the commercials. So you are a useless viewer to them. The networks don't care about making good TV shows. They care about making something you will watch so that they can deliver advertising to you. This is why most of them now play all of their shows in full on their websites so if you watch it there at least they still get something out of it. Sure, maybe if they changed their business model and put amazing watermarks or branding bugs or whatever in them they could make money with the downloads, but that is not how they work right now. Bottom line. If you are a fan of a show watch it live or on their website. If you don't, don't be surprised if it gets canceled. Most shows get canceled, that is just how it works.
But back to our argument. We weren't talking about TV shows. We were talking about the Wolverine movie. It seems fair use has to be considered on a case by case basis. Downloading a TV show may not hurt its potential earnings. Downloading a first run movie very well may. You could even argue that downloading a TV show could hurt its potential earnings in some markets. Here are two examples:
1. Take the show Heroes as an example. Let's say there is a country out there where this show does not air. So the people that live there download it and watch it. You would argue that is fair use and that it isn't harming the producers of the show because it isn't for sale there. But the producers are planning on syndicating the show to that country when they have enough episodes. By the time they get enough episodes ready for syndication the downloading in that country has diminished the interest so they get less for the syndication rights than they otherwise would have. They have just been damaged by the downloads. Or maybe they intend to sell the show on DVD but there are fewer sales than there would have otherwise been because everyone has seen the show. Again, all the downloads have costs them sales.
2. the wolverine movie. Say you live somewhere where the movie is not playing. You argue that the downloading it doesn't hurt the studio because it is not for sale in that area. But then a few months later it comes out on DVD and pay per view and it is available in that area. Now you have already seen it so you decide to rent/buy something else. Had you never seen it you would have bought/rented Wolverine, but you downloaded it so now you have decided that you won't see again. They just lost a sale. That is damages.
The betamax case is fine and good but you have to realize that that ruling was made during a time before cable and satellite TV, before the internet or cell phones. It was a time when most people got 4-6 channels so reruns did well and recording shows didn't hurt them because there was so little competition. Now there are 200+ channels and the internet and video games and all kinds of competition. Plus movies and TV shows are selling DVDs of their full season so I would argue that the actual findings of a case that was decided long before the current market place may need to be modified. You are always saying I am trying to take away rights that were established by this case, but it seems you want to hold onto things that may no longer be applicable with new technology. Maybe the entire law needs to be looked at again and updated for modern times. I think that is what we are going to be seeing over the next few years.
None of this changes the reality though. If you download the Wolverine movie and watch it because it is not playing anywhere near you then later on you decide not to buy/rent it because you have already seen it then they lost a sale and that lost sale is directly connected to you downloading the movie so that download damaged them and it is then not fair use.