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Originally Posted by kane
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.
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like i said repeatedly shows are currently being timeshifted to death
it however doesn't change the fact that it doesn't matter if the times shifting device is a torrent or a pvr they both do exactly the same damage.
Torrents however had the potential to solve the problem by subsidizing the cost thru branding bugs which means in order of priority you should be trying to outlaw pvr before you go after torrents for tv shows.
The problem is that you can't because the betamax case legalized timeshifting, it made gave the pvr the right to exist unhindered by copyright infringement and once granted that right can not be taken away even though we now know that it does cause economic damage.
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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.
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"The underlying assumptions here are particularly difficult to accept. Plaintiffs explain that the Betamax increases access to the original televised material, and that the more people there are in this original audience, the fewer people the rerun will attract. Yet current marketing practices, including the success of syndication, show just the opposite. Today, the larger the audience for the original telecast, the higher the price plaintiffs can demand from broadcasters from rerun rights. There is no survey within the knowledge of this court to show that the rerun audience is comprised of persons who have not seen the program. In any event, if ratings can reflect Betamax recording, original audiences may increase and, given market practices, this should aid plaintiffs, rather than harm them."
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the point is that the marketing fundamentals have not changed, people who see the movie in the theaters also buy and rent the movie when it comes out on dvd. Tell the truth do own a dvd of a movie that you have watched in the theaters. how about buying dvd of tv shows that aired on tv.
I own boxed sets of 24 and alias. I own tons of movies that i have seen in theaters
there is tons of evidence that the secondary viewing is not restricted to only those people who have not seen the first viewing. If secondary purchase can happen because of the first viewing (because the movie was so good that you want to buy the dvd for your collection) as from not viewing (i will get it when it on dvd instead) then at best the access shifted viewing is agnostic to secondary sale.
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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.
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but the point is that is just speculation (see above about agnostic to the secondary viewing) and what you need is cold hard proof when this becomes challenged in court.
Without licensing of the content thru bit torrent there will be no way to track it
which means the burden of proof will fall on the fair use right. Sometime in the future we may find that (just like timeshifting) it does in fact cause economic damage, but when that happens it will to late. The way the law works is that the exclusive rights do not exist for fair use.
Which means for the scope of fair use the content is public domain. Once in the public domain it can not be made private again. It is a one way trip.
Demanding fair and balanced liciencing is the only way to stop access shifting from happening.