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Originally Posted by Nautilus
If the copyright holders believed that a broadcast is automatically an infringement, they'd sued for both broadcasts. The issue was that the plaintiff believed the second broadcast WAS a broadcast, and thus Cablevision needed to buy an additional license for it. While the defendant (Cablevision) believed that the second broadcast was NOT a broadcast but a private transmission covered by fair use and doesn't need a license.
Finally the court upheld Cablevision because their system met main conditions of the backup fair use: 1) a copy was created by user, 2) a copy was accessible only by the user who created it.
The importance of this decision is that the users are now confirmed to have the right to make their fair use backup copies any way they like, either using DVRs at home or some remote service provided by other company (or by the community - which was not specifically stated but is the logical extension of the court ruling), as long as this service meets two main conditions of the backup fair use outlined above.
No part of the court decision suggests that if a copy created by the user was publicly accessible, that would still be fair use. Quite contrary, the private nature of the copy was the important part of the reasoning why the court found in favor of Cablevision.
This decision extends the nature of the backup fair use to basically any method to create your backup copies and any place to store them. But it doesn't dismiss the condition of private, not public access to your backup copies. Basically, what the court says is: you create your backup copy (no matter how), you store it (no matter where), and you use it.
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now you are pulling ruling out of your ass this one had nothing to do with backup.
this had to do with timeshifting. The right to move the viewing time from monday to tuesday.
your trying to add extra conditions like when robbie said that the only valid form of parody was dressing up in a wig and pretending to be claudia maria , or the other person (crockett i believe) who pointed to downfall parody and said that they need to hire their own actors to recreate the scene for the parody to be valid.
none of those are true and you adding the conditions the bits must go thru you is just as bullshit.
and your shifting from one fair use to another to justify that bullshit because you know that if they were talking about backup the sms single shared point ruling would come into effect and validated. Your pretending that this case was about backup to fake a claim that reason for that ruling not comming up was because this was about timeshifting not backup and extending that fair uses contention BEFORE establishing that this action was legitimately covered by at least one fair use (timeshifting) would not be a baby step but a giant leap forward but instead because the courts maked a declaration about single vs shared access to the fair use copy.
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The copy in Cablevision case originated from the licensed stream to users who all had the right to view it (paid for subscription in this case), and thus had the right for backup copies as a part of their fair use rights.
The seeder in the case of public torrent doesn't have a license to stream the content (despite him maybe having the right to backup his copy of the copyrighted work, that doesn't mean he has the right for public performance of that work).
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your repeating yourself and again ignoring fair use. A fair use authorized source (by backup) would be just as valid as a licienced source because both would not be an infringement of copyright. The latter because the copyright holder gave permission, the former because section 107 says that it was not an infringement nothwithstanding the exclusive rights granted.
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The court didn't address this issue, meaning that most likely Cablevision was either licensed to make temporary copies of the stream for the different time zones, or that they were provided with several streams by their content providers, each one for the different time zone. The issues was about making copies they were not licensed to make (copies of the same show for the same timezone) - and the court upheld Cablevision was not making any such copies, their users did.
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but it wouldn't matter because as the way the technology works even if they were licienced to delay streams via timezones, the original source being outside the scope of the user (recorded before delivered user).
That fact not only proves that your bits have to go thru the use arguement is bullshit because if that was true the case would have lost.
It also proves your above arguements with the mismatched fair use rights (substituting backup for timeshifting) is also bogus. Becuause if those arguements were valid then the delayed source would be the only licienced one for fair use. the court would have put a requirement that the delayed source at the local affiliate would have to be source (no central datacenter) not the original source. The system by cablevision would have been radically different, and significantly more expensive to run. No such ruling existed within the scope which means your arguement is proven to be bogus.
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There are even more argumets to the contrary.
1. Part of the court reasoning in the Cablevision case was the analysis of NFL vs Primetime - where Primetime was held liable for broadcasting NFL games in Canada without a license, despite them argueing that the stream was sent to Canada through private transmission which is fair use and no infringement took place at the United States soil.
The court upheld that despite private transmission is legal and fair use, in this case it was a part of the broader scheme which eventually led to infringement and thus the defendant is liable.
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private transmission are not fair use they are not automatically illegal unlike public transmissions. Fair use must still validate private transmissions (for timeshifting etc) for it to be legal.
again you are missrepesenting th context of the ruling to justify a creating a bogus condition.
Without that misrepresentation the example gave meets three very important conditions
- no fair use authorized the distribution to canada (since it was licienced in canada access shifting does not apply)
- the shunted stream could terminated without violating any persons who had rights to the content (fair use or licienced)
- because the NFL did licience the broadcast to canada thru other companies such an act did violate section 4 of the fair use statute making it impossible to argue any new fair sue could justify such an action
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Same reasoning could be applied to the case of a public torrent tracker - some parts of the process may not be infringing, but the process as the whole is, because it leads to the creation of unauthorized copies.
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those conditions don't apply in the case of the tracker the swarm is one big data stream
like the vcr which could be used for legitimate acts like timeshifting and the illegal act of bootlegging the illegal activity does not justify shutting down the entire process. (another proof that fair use trumps copyright since if it was the reverse they would say tough luck to timeshifting it can be used illegally)
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2. In situations where there is one seeder and one leecher, direct copying of full unabridged work takes place.
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that action would be covered two ways, the seeder would have a right to create a backup on my machine, and the timeshifted leacher would have a right to get the copy since his aquiring would be covered by fair use.
If the leacher was not timeshifting then his part of the transaction would be illegal
which again is the point i made
go after the leacher without the fair use right.
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In situations where there is several seeders and several leachers, substantial parts of the copyright work get copied, which will constitute and infringement too (say 30% of the movie was downloaded from your computer, that's substantial enough to be considered an infringement).
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total bullshit arguement, look up cache look up sampling. this arguement is complete crap. infringement would not be possible until a complete copy was made. IF the copy was not functioning it would be covered by cache fair use. If the piece you watched was all you wanted to watch (ie the titties in the movie ala mrskin) then you had no desire to watch the entire movie and therefore did not cost copyright holder the sale (sampling).
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3. When you seed at a public torrent, all half a billion copies of it are direct full copies of your original file, not a single bit gets changed - thus despite the process being broken into several steps and not everyone of those half a billion people copied full file from your PC, the end result of it is the same to what whould have been if they all downloaded this file from your computer directly.
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again you are making a rule that was declared invalid by this case. This case not a bit is change the diverted stream was digitalized. The bit stream like the swarm would have the same conditions. If you could make this arguement cablevision would have lost. They did not so you are making a bogus arguement. All the timeshifted copies were copied thru the same device (pc in the case of the swarm, MDM in the case of cablevision)