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Originally Posted by Nautilus
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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Cablevision gathers the content of the
8 various television channels into a single stream of data.
9 Generally, this stream is processed and transmitted to
10 Cablevision’s customers in real time. Thus, if a Cartoon Network
11 program is scheduled to air Monday night at 8pm, Cartoon Network
12 transmits that program’s data to Cablevision and other cable
13 companies nationwide at that time, and the cable companies
14 immediately re-transmit the data to customers who subscribe to
15 that channel.
Under the new RS-DVR, this single stream of data is split
17 into two streams. The first is routed immediately to customers
18 as before. The second stream flows into a device called the
19 Broadband Media Router (“BMR”), id. at 613, which buffers the
20 data stream, reformats it, and sends it to the “Arroyo Server,”
21 which consists, in relevant part, of two data buffers and a
22 number of high-capacity hard disks. The entire stream of data
23 moves to the first buffer (the “primary ingest buffer”), at which
24 point the server automatically inquires as to whether any
25 customers want to record any of that programming. If a customer
26 has requested a particular program, the data for that program
-8-
1 move from the primary buffer into a secondary buffer, and then
2 onto a portion of one of the hard disks allocated to that
3 customer.
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when you look at the original case came along and the ruling came down in favor of the copyright holders the arguement was basically that the second stream was a broadcast and therefore automatically infringing. The arguement was basically this, 1000 people will get the show from the second stream, that means they were being broadcast too just like the 1000 people who got the original real time stream. They just got it on a different day.
The problem with this arguement is the difference in how the people got the show.
While the primary realtime stream was a broadcast because it met all the conditions the second was not.
the broadcast did not create a private copy it simple delivered the bits in real time to the tv set.
while the second stream created a complete working copy.
The broadcast played directly from the stream of data while the second simply issolated a copy and played from that copy.
if the user didn't select the show from the second stream nothing was created.
The creation was of that copy was not made by the user in the sense that they physically made it was simply instigated by their choice, but it was still created by the user in the sense that if the user had not made that request the copy would not exist.
when you don't make up extra conditions that were never actually stated this matches perfectly with the way torrent swarm works.
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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.
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the copy in the cable vision case did not appear out of the blue either, it came out of the bit stream of data forked from the original stream. Likewise the seeder does not give a complete working copy of the file he breaks it into a bit stream of data. If that breaking apart of data was in of itself a broadcast then the courts would have had to rule against cable vision since they did not you can't make that arguement either.
now that is a collection of bits in a swarm, if no one were to complete a copy from the swarm would a single file be created, would you be able to watch anything (no). Again just like the secondary cable stream.
the last point about a copy that is created by you, remember that it was split at the point of original input. And streams of cable data are delayed so that they will appear at the same time even though we live in different time zones. so a show that was orignally provide so that i could watch it at 8pm would not air until 3 hours later when it becomes 8 pm in San Jose. The copy would have been created BEFORE the data stream of bits get to you. Your definition of the bits have to go thru you to be considered created by you is completely bogus made up statement. The context of created by you is in the scope of if you did not flag it it would not exist. It existance is dependent on you, not the bits have to go thru you.
again triggering a creation from the swarm of bits to create a local private copy to play meets this condition.
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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.”
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but that does not effect the leaching behavior of me, or the session creating behavior of the tracker that about the source the infringing activity of the original seeder (intermediate seeders would be part of the bit stream and are covered by the previous rulings)
the act of the seeder making it available once i download it could be an infringement, that is a complete different issue. However as the Decss case proved even if the source was was 100% illegal the copyright holder does not have a right to make all the fair use backup created from that illegal source illegal.
so i am covered anyway.
The original seeder would have a fair use right backup, while that does not exist in this case. Since cable vision licienced the original stream and was therefore authorized without fair use. That does not mean that fair use authorized seeding would not validate the entire transaction. There are enough arguements to justify this position
(no working copy is transmitted, it is broken into no working pieces, it is possible to create n-1 points of redundancy without creating a single working copy of the file) it has not been validated at the supreme court level.
That is the court case i am waiting for to start mass producing my torrent recorders.