Quote:
Originally Posted by kane
I guess not much. The way you word things it sounds like any use of any thing can be fair use.
Let me give you an exact example and see what you think of it.
Say movie comes out and is released in new york and los angeles. A lot of smaller independent movies do this to test the market. I read about the movie and think I want to see it, but I don't live anywhere near those places. So I download it{in otherwords your desire to see it is so astromonically strong that you can't wait a month and are willing to live with a crappy cam just to see it}. Then a month or so later the movie gets a wider release. I see it is playing in a theater near me, but I have already seen it so I am not going to go see it again. {if the movie lived up to your expectations you would have seen it in the theater the way it was ment to be seen remember -- see your desire} Had it not been available for download I would have never seen it so I would now be going to see it. Is my download fair use?
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i am assuming that you are talking about after access shifting becomes a fair use right since this would not be covered by any existing fair use and you are not confessing that the ONLY reason you didn't go see it in the theater was because you downloaded it.
That being said yes but only for the 1 month period where it was not available locally.
The problem with your analogy is that you are absolutely blaming the downloading for the lost sale, when it at best is partially responsible. It just as likely that you didn't see it in the theater because while the movie played to the snooty taste in NY and LA it doesn't play in pitsburg. under that condition the access shifting (and judging for yourself) would have had the same effect as a review by a local film critic telling you the truth about how the movie sucks.
Going back to the vcr case and the timeshifting right, the courts recognized the fair use even though plantiff suspected that it would cause lower rerun viewings.
In otherwords you can blame the fair use "infringement" (in quotes because it is not actually an infringement) sole for the lost sale when other factors have a more deterministic effect.(weather the reviews were valid or not).
of course the copyright holders could stop access shifting from being established because of this ambiguious deterministic effect by simple getting ahead of the ball and dropping the unreasonable staggered liciencing release the movie in the theaters, on the internet on dvd at the same time, and let the channel distribution capacity fill the regional void. competition between channels would keep prices reasonable and expand the revenue streams of the actual content producers (all though the middle men distributers would get squeezed).