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Originally Posted by gideongallery
except your interpretation of "created by the user" has to be wrong because the ruling was in favor of cablevision.
the stream doesn't even touch the user until they request the timeshifted copy.
it not recorded and then upload it is simple flagged for issolation. That request is all that is necessary for it to be considered "created by the user"
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I've already stated that my interpretation of "created by user" was for another situation, not for Cablevision case - you can dismiss it if you do not undertand what I'm talking about. But the "created by user" requirement still stands - in the case of Cablevision, the court found that pushing a button and thus commanding the Cablevision server to make a copy is enough for this copy to be considered created by user, not Cablevision.
If the court would have found that Cablevision was making copies, not their customers, they would be liable of infingement - because they didn't have a license to make copies, and could not make them under the fair use defence too.
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the other two conditions are made by the act of downloading from the swarm
is the copy that i download from the stream made by me (yes)
is the copy (not non working pieces) accessed by only me. (yes).
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Do you mean that by downloading a file from a public torrent you meet the conditions of fair use outlined in cable vision case? And that's because the copy of the copyrighted work appears on your PC where no one can see it thus making it private?
You're wrong then, because this copy does not appear out of the blue at your PC - you need a source file to make this copy from. If this source file is a copy made by you (no matter how), then it is a private transmission and is not an infringement. If this copy was not made by you, and was not authorized by the copyright holder to broadcast, than it's public performance and is an infringement.
The court specifically addressed the issue of the source file used for transmission:
3 Furthermore, no transmission of an audiovisual work can be
4 made, we assume, without using a copy of that work: to transmit a
5 performance of a movie, for example, the transmitter generally
6 must obtain a copy of that movie. As a result, in the context of
7 movies, television programs, and other audiovisual works, the
8 right of reproduction can reinforce and protect the right of
9 public performance. If the owner of a copyright believes he is
10 injured by a particular transmission of a performance of his
11 work, he may be able to seek redress not only for the infringing
12 transmission, but also for the underlying copying that
13 facilitated the transmission. Given this interplay between the
14 various rights in this context, it seems quite consistent with
15 the Act to treat a transmission made using Copy A as distinct
16 from one made using Copy B, just as we would treat a transmission
17 made by Cablevision as distinct from an otherwise identical
18 transmission made by Comcast. Both factors–the identity of the
19 transmitter and the source material of the transmission–limit the
20 potential audience of a transmission in this case and are
21 therefore germane in determining whether that transmission is
22 made “to the public.”