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Originally Posted by gideongallery
again making an arguement that that is proven to be invalid. the timeshifted copy was delivered over the internet (made public) it would be cached by cache servers, relayed by them if making the bit stream public was the same as a public performance cablevision would have lost.
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Cablevision never made any stream public, except for their main stream which they were licensed to make public. They were not upheld because the court ruled that making a private stream public is legal, they were upheld because (among other reasons) they never made the second (private) stream public.
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what makes it a public performance is the conditions i have already pointed out
what you are playing from (the live stream or a copy made locally)
even the tube sites play from local cached copy, not directly from the stream
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Your definition does not match the one in the Act:
3 [t]o perform or display a work “publicly” means (1) to
4 perform or display it at a place open to the public or at
5 any place where a substantial number of persons outside of a
6 normal circle of a family and its social acquaintances is
7 gathered; or (2)
to transmit or otherwise communicate a
8 performance or display of the work to a place specified by
9 clause (1) or to the public, by means of any device or
10 process, whether the members of the public capable of
11 receiving the performance or display receive it in the same
12 place or in separate places and at the same time or at
13 different times.
The Act doesn't set any technology limits as to how the public performace should be comminacted to the public, unlike you did. It simply says "to transmit or otherwise communicate" - meaning any technology that gets the job of communicating the work to an audience done, not excluding the bit torrent technology, or transmission from a cached copy (if cashing a copy is a step in delivering the performace to the public).