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Originally Posted by Nautilus
I've already admitted two or three times that this assumption was wrong - are you even following our discussion? The court said the copy had to be "created by user", let's stand by this definition, which means either way of creating such copies including commanding the remote server without any pieces of information to ever hitting your own PC.
I've already dropped the uploading condition too.
There are now two of them, both directly from the court case:
1. A copy should be created by user.
2. A copy should be accessible by this user only.
A "copy" in both cases means the source file that is in the swarm which originates the later transmission, since in the case of Cablevision no other copies existed.
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sure it does if you use your definition of the copy existing within the swarm. they created copies of every single show in the stream when they clone the stream. That by the way is what was considered the infringement in the original case. The arguement being that copied stream was delivered to multiple people.
an arguement which has been overruled in this case
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None of the two conditions are met in the case of public torrent because:
1. User doesn't create a copy (a source file of the transmission that is in the swarm) - this file already exists in the swarm, the user simply commands his bit torrent client to download it, albeit in several pieces from several PCs.
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only if you ignore the parallel between the partition stream and the swarm. Both are the same a copy recreated as a bit stream.
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2. While user downloads and later when the file is downloaded, other users may download either pieced or the entire file from his PC thus not making his copy private.
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so instead of downloading from the public stream creating a private copy which is only played after creating (see the seperating the action action of performing from public)
i create a private copy from the public swarm which is only played after creating.
Ignore that distinction and you make all fair use to disappear from the internet,
every online backup sends packets across the pubic communication of the internet
packet sniffers could grab and recreate any such file publically distributed. You would be guilty of copyright infringement for every use of the internet.
btw if you want an absolute example, one that proves that the performance is seperate from the public download a torrent which has rar the file.
the file can not even be played until you unrar it.
an extra step exists between the public aspect and the performance in all those case.
That the significants of this case, it not a public performance because of the break between public and performance.
As a result the fair use right has right to be considered, it is not an automatic infringement. I can use the cloud to obtain fair use rights, because the public nature of the cloud is not automatically a public performance.
if the public nature of the cloud was automatically a public performance cablevision could never have won.