Dirty Lord

sounds not great?

__________________

Nautilus

Of course I do see such restrictions explicitly listed in the court ruling:

http://www.eff.org/files/filenode/st...n-decision.pdf

"And because the RS-DVR system, as designed, only makes transmissions to one subscriber using a copy made by that subscriber, we believe that the universe of people capable of receiving an RS-DVR transmission is the single subscriber whose self-made copy is used to create that transmission... Given that each RS-DVR transmission is made to a given subscriber using a copy made by that subscriber, we conclude that such a transmission is not “to the public,”..."

each of these copies is the keyword - read the court ruling above. Not one copy for all viewers which will consitute a public performace, but one private copy for each users, created by this user.

If that copy was created by you, uploaded to the swarm by you, and can by downloaded/veiwed only by you - that's fair use and is not a public performace (read the court ruling above).

Also read this (yet another quote from the court ruling):

16 Professor Nimmer’s examination of this definition is
17 particularly pertinent: “if the same copy . . . of a given
18 work is repeatedly played (i.e., ‘performed’) by different
19 members of the public, albeit at different times, this
20 constitutes a ‘public’ performance.” 2 M. Nimmer, § 8.14
21 [C][3], at 8-142 (emphasis in original). . . . Although
22 Maxwell’s has only one copy of each film, it shows each copy
23 repeatedly to different members of the public. This
24 constitutes a public performance.

28 Unfortunately, neither the Redd Horne court nor Prof. Nimmer
29 explicitly explains why the use of a distinct copy affects the
30 transmit clause inquiry. But our independent analysis confirms
31 the soundness of their intuition: the use of a unique copy may
-41-
1 limit the potential audience of a transmission and is therefore
2 relevant to whether that transmission is made “to the public.”

So how exactly buffering a public stream into your computer makes this publicly available stream not a public performance?

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gideongallery

your trying to make the arguement that lost.
The public stream came from the in feed for the cable company it was redirected and partitioned off based on the individual users request.

that is exactly what happens when i connect to the swarm and partition away an unique copy for my own viewing that action providing the stream, or providing the partitioning service is not an infringement.

That the point the reversal of the ruling.

However don't be a complete moron and claim that i am justifying wholesale copyright infringement. That only eliminates the liablity from the host/stream provider.

The user could still be liable, if he has no viewing rights, then his actions would be infringing. just like if i hacked the cablevision servers and hijacked some cached copy of the show without paying the cable bill that grants me the right.

again
leave the seeders alone
leave the trackers alone
leave the leachers with a fair use right alone
go after the leachers without the fair use right.

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gideongallery

the local copy i download from the swarm is created and viewable only by me.

the extra part about uploaded to the swarm by you is the only way you could come to that conclusion but reread the case, that is a completely fabricated arguement
because the rs-dvr user doesn't upload anything to the remote servers. They flag the content they want (like i do when i subcribe shows to the rss feed) and cable vision redirects the stream to CREATE the copy for my personal use (like utorrent does for personal copy i get to play).

The argument you are making is what was overturned, the fact that the original broadcast was public (most of the stations fly for free thru the air which is way more public than swarm) doesn't make the partition of individual copies create for personal use a public broadcast.

that was the bogus arguement you and the copyright holders were making in the past.
look at what is being played not where it comes from.

if i pause my viewing does it pause playing for everyone else
if i stop my viewing does it stop playing for everyone else
if i delete my copy does it delete for everyone else.

that the difference between public rebroadcast and a unique copy for personal use.

Again it doesn't invalid the liability for the copier who doesn't have a right to the content. They are still guilty, it just prevents wholesale denial of those that did pay for the content to use the network as a timeshifting device.

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Nautilus

So what exactly am I expected (by law) to do in order to "honor" fair use rights of my users, and where it is defined that by not doing so I invalidate my rights as a copyright holder?

If I'm not providing VCRs or DVRs to all of my users to record my shows, and a "cloud" storage to store all shows they want recorded, my copy rights do not exist anymore? What law says so?

Of course they don't, because fair use rights are defined by law and do not depend on what I'm doing/not doing.

Same for my copy rights, they exist no matter what I'm doing - even if I'm sueing users that have obvious fair use rights and was laughed out of the court, that doesn't strip me out of my rights as a copyright holder.

They way copyright laws are written, fair use exists only as long as it does not harm a copyright holder - which cannot be interpreted as a priority.

Since they operate the site where the material was posted (either automatically or not, does not matter) - yes they're publishers and thus fully responsible for what's posted at their site.

No, not ads make them a publisher - even if their service is ads free they should still be considered publishers, because they operate their site (have editorial policy, have full access to the admin interface, can add/remove materials from their site etc).

Their host is not a publisher because it does/owns none of the above.

Maybe even better definition would be - you're a publisher of anything what appears at the domain name you own. If it's your domain name, you're fully responsible for what's posted at it.

What law says free speach should be free of charge?

And we're not telling about free speech there - it's fair use, a different story.

When it was established in the court that timeshifting is fair use, none of the courts ordered Paramount to send you $1K so you can buy one of those new Sony VCRs.

Never did I say that ALL "fair users" must pay - those that are within the well known/established boundaries of the fair use can use free services.

And only if ALL free public service sites refused to host their materials because they're not sure if that's fair use or not, now they can go ahead and try paid host, and battle in court if sued.

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gideongallery

i didn't say provide i said honor only a complete moron would not see the difference
When you are talking about changing the laws so regulate fair use to secondary status preventing/restricting it existance completely that goes way beyond simple choosing not to provide the service.

that goes to the level of trying to stop other people from providing the fair use. SEE THE DIFFERENCE.



this is the biggest bullshit statement you have every made because we are talking about the situation where copyright exclusive rights are subject to (or dependent) on recognizing fair use.

if fair use conflicts with exclusive rights there is no way you can claim that exclusive rights take precedents.

conversely fair use is nothwithstanding (or irregardless) of the exclusive rights of the copyright holder, which means in the case of a conflict fair use CAN say it takes precedent because the law itself says irregardless of the exclusive rights fair use is NOT AN INFRINGEMENT.



all this is again changing the direction of priority overriding fair use restricting it limiting it so that the exclusive right prevail

in the case of thing like parody which is both fair use and a free expression it is even worse because you are in fact violating a persons right to express themselves.

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Agent 488

this thread used to be interesting.

Nautilus

Yes that is correct - the court ruling says a copy should be "created by user"; which I interpreted as "uploaded to the swarm by user" for those case where a user does not have such a device as a RS-DVR available to act on his behalf automatically (I believed we were discussing one of such cases, and the only way I see how that user-created copy can make it to the swarm is to be uploaded there by the user - but that doesn't mean other methods do not exist).

But indeed the original definition was "created by user". And the second part was "can be access by this user only". So if your copy was created by you - > then somehow made it to the swarm at your command - > and is accessible by you only while it is in the swarm, that's fair use and is legal.

Which means that your ISP was right when they told you cannot download a copy of Lost from a torrent, since that copy was not created by you. And a peer you downloaded this copy from, had no right to share it, because he can only share his backup copies with himself - not you no other persons, depsite them maybe being in legal possesion of a copy of a copyrighted work and thus having the right to backup it. They should backup it themselves, and share with no one but themselves.

The law (as quoted above) says it does matter where it comes from - it should be a copy created by yourself, which can be accessed only by yourself. It does not matter however if this copy is stored at your PC/VCR or in the "cloud" at some remote storage, as long as you meet the first two criterias. That's fair use - you can choose where to store your legal backup copies, and I as a copyright holder only cheer for those opportunities for our customers. As long as they do not share those backup copies with anyone, they surely can store them wherever they like more.

That's not bogus argument as you're trying to put it, that's how the laws are written - if you're not happy with them, call your congressman.

You're trying to persuade the GFY community that laws are already written the way you want them to be - which is false, they're not. Laws do not allow downloads from publicly accessible storage devices including clouds - they only allow to download from privately accessed cloud storage devices, and only of those copies created by you personally.


"Legal copiers" are liable too, if they share their copies among each others.

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DonovanTrent

Nautilus, your efforts are laudable, but you are pissing in the wind. You are talking to a brick wall. Perry Mason here has convinced himself that it's legal to take a copyrighted item and give it to multiple other people in his choice of distribution methods. There is no difference between taping a record and giving your friends copies of the tape in the old days vs. torrent/tube yadda yadda today. He just thinks there is and he's going to fight to the death, as long as that fight is on an online forum and not in a court of law.

Save your breath, it's wasted on MatlockGallery.

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Donovan Trent

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"

the point is the what is being played
is it a public broadcast or a private copy
and we have already established that it is a private copy that is being played.

Your adding extra conditions that were already overruled, those were the arguements made and accepted at the lower court level. This ruling says those a bullshit and you are making them anyway.

i have highlighted the extra part you put in there without valid justification

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).

remember that the file is transmitted thru the internet as packets so if you were to argue that access of pieces was enough to invalid the accessing by only me this ruling would also have been ruled against. So that is in fact a difference strong enough to still answer yes too.


and again for the copy in question both conditions are met. you can't add an extra condition (uploaded by user) to create a false infringement.


total and utter bullshit, if the stream being public automatically created infringement then timeshifting would never have been granted
the tv signal was being broadcast thru the air.

IF you were not allowed to give your friends copies then vcr would have encoded locks that pervented tapes from playing in vcr that they were not recorded on.

The technology has existed to do that, and it has never been forced on the manufacturers
you are making up rules just like you are making up rules above.

__________________

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Nautilus

When I'm saying the domain name owner should be fully responsible for everything that appears whithin the domain name he owns, it is too far reaching to say that I'm oppressing either free speech or fair use rights.

When the DMCA was written such things as youtube and the likes didn't even exist, and the safe harbor was put in place with clearly hosting service providers in mind, which do not operate websites, do not modify content, do not have editorial policy etc etc and are basically a neutral services that do not interfere with anything at the website except that they can decide whether to accept it as a client or not - not UCG sites which are fully in control of what's going on at their sites and do not meet the IPS criterias except that maybe in some instances content is really uploaded by users, not by the site owners themselves.

DMCA clearly aims to make fair use possible by providing safe harbor to ISPs and counter notification right to their users - but never do I see it trying to facilitate the fair use by trying to prevent the "economical censorship".

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gideongallery

except you are not talking about applying this penalty when the content is proven to be uploaded by the employee only but in all case including when it is being uploaded by the end users.

I know this because the law currently give safe harbor protection for employee authorized/uploaded content. Prove that employee of the company either actively recruited people to infringe, or did the infringing themselves and the safe harbor does not apply now. You don't have to make a change to the law to have that happen so the very act of talking about changing the law proves you are talking about creating "economic censorship".

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gideongallery

i am assuming you mean User Generated Content sites when you say UCG

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“When crimes occur through the mail, you don’t shut the post office down,” Steve Wozniak

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.

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.”

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Nautilus

Yes, I mean User Generated Content sites.

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Nautilus

Well I know I aint going to prove anything, but I still find our discussion pretty enjoyable. And also I'm perfecting myself in the copyright law while at it, which is good since I'm planning on some legal battles in the foreseeable future.

But thanks for your support anyway.

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bbobby86

If copy was created , uploaded to the swarm, and can by downloaded/veiwed only - that's fair use and is not a public performace...

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Nautilus

Yes it is legal to share your copy of the copyrighted work with your family and closest friends:

Section 101,
2 the definitional section of the Act, explains that
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.

Thus, if you seeded your copy of the say "District #9" at a public torrent site, and got sued, you'll need to convince the judge that all half a billion people who downloaded it are your family and friends if you want to come clean out of the courtroom - because if they're not your family and friends, your actions will be considered public broadcast which is an infringement.

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gideongallery

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.

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.


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.

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gideongallery

or prove that you are not giving anyone a working copy of the file and are therefore not creating a single infringement

see above.
When you take into account that seeder does control the number of copies of pieces that each leacher makes and no working copy exist until more then n-1 pieces are copied and traded. the arguement that you are in and of itself sharing with a billion people because a billion people make personal private copy from a swarm initiated but not controlled by you is total bullshit.

This case makes that arguement a lot easier (see above).

Once that ruling comes down the torrent recorder will be sellable.

whoo hoo

__________________

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CrkMStanz

now the truth comes out

you have a vested and financial interest in making ALL digital products free

no more 'i understand the laws better', no more 'altruistic protector of free speech', not a champion of the rights of the 'fair use crowd'

oh no... just another scumbag bastard willing to rape an industry and put many people out of work just to line your own pockets

oh wait... isn't that EXACTLY what you accuse sony/viacom/etc.... of doing?
not o.k. for them but perfectly fine for you?

I take back all the names I have applied to you... moron, idiot, delusional...

hypocritical scumbag bastard - thats your new title

congrats

.

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gideongallery

i have already said it was based on open source os, with an open source bit torrent client using a java fx interface (xml based)

you fuck nut. Just becuase i want to release it and create it doesn't represent an abuse of the market.

__________________

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gideongallery

oh and when you put all your content under a share and share alike licience then can you claim that your actions are as pure as mine.

I may have a monetary desire to fair use to be respected but how i release my code in this case definately puts me above you/viacom/

BTW moron sony was on the fair use side of the timeshifting arguement.

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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.

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).


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.

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.

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.

2. In situations where there is one seeder and one leecher, direct copying of full unabridged work takes place.

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).

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.

You'll need the case which confirms that making your private copy publicly accessible is fair use, which is not going to happen, because making your private copy public would constitute a public performance of a copyrighted work - meaning that basically you're waiting for current copyright laws to be overthrown by giving public performance rights to anyone (or to anyone in possession of an authorized copy, which is basically the same, both will lead to the extinction of the content industries).

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gideongallery

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.



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.



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.

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

1. no fair use authorized the distribution to canada (since it was licienced in canada access shifting does not apply)
2. the shunted stream could terminated without violating any persons who had rights to the content (fair use or licienced)
3. 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

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)

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.


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).


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)

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gideongallery

continued previous post too long

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. Your creating a rule that doesn't exist.
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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Nautilus

I didn't see any mentionings of either backup or timeshift in the court ruling - so out of context I assumed it's backup. But if you believe it's timeshifting - OK, what does that change in the core of argument?

Where did I say the bits must go through to you?

I have no idea what you're talking about.

That will fly if:

1. It is confirmed in court that sharing of copies made for timeshifting between the users who have fair use rights to make such copies is legal.

2. It is confirmed in court that seeder (provided that he has a right to timeshift to begin with) is not liable of public broadcasting if at least one of his leechers was not a legal timeshifter.

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Nautilus

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.


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).

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gideongallery

look your adding a condition that it only fair use when you upload to the swarm and only you can access those pieces.

you justifying that condition because this particular case did say it was ok to have a common access point for the "backup".

but that not because such a condition is requirement of fair use, but because this is not about backup.

when you argued about uploading having to be done if the bits did not go thru that person it would be impossible for him to upload anything. your upload condition requires the bits to go thru that person.




[/QUOTE]

1. It is confirmed in court that sharing of copies made for timeshifting between the users who have fair use rights to make such copies is legal.

2. It is confirmed in court that seeder (provided that he has a right to timeshift to begin with) is not liable of public broadcasting if at least one of his leechers was not a legal timeshifter.[/QUOTE]


remember the act itself states that "not withstanding" exclusive rights fair use is not an infringement. By that definition if it is fair use, none of your exclusive rights exist. If none of your exclusive rights exist for that scope, there is no question about the legality of the copies.

as to point two, of course it does, the seeder is never giving any of the leachers a complete working copy, is never guilty of creating a single infringement. His hands are clean of an infringing act. If they were to rule the way making a person legally liable for the actions of someone else beyond his control. I could sue you for copyright infringement if you shredded a document and hired people to hunt thru your garbage and recreated it . You would be guilty for the copyright infringement i created without your control, just because you made the pieces available by throwing them in the garbage.

if you follow the law as it is currently written respect the concept of mens rea and actus rea the seeder actions are non infringing even if the leacher is infringing.

making the seeder liable under such a circumstance would violate the fundamental principles of the law as we know it.

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gideongallery

sure they did when they delivered the copy to the settop box over the internet. The file was broken into packets and transmitted over the internet. The problem with your misrepesentation of the act is that you equate all public communication with public performance.

that like saying that all men are white men
all blues are navy blue
and all red are blood red.
none of those statements are ture


sure it does because i don't stop part way thru the definition like you did

it does not say "to transmit or otherwise communicate"
it says
"to transmit or otherwise communcate a performance"

display of the work to a place specified by clause or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

now look at the downloaded copy or cached copy

the action of display or performing is independent from creating.

I could download a video and then delete it (i have done that when i found the file was the wrong format (.mkv)). I could decide to flag a video and then change my mind never to watch it. (as in when the series became stupid and decide to not watch anymore... ala prison break)
it would never be performed it would never be displayed.

The public communication would exist, just like i am still a man
but it would not be public performance just like i am not an white man.

public communcation does not make the act a public performance, if that interpertation was valid no fair use could exist on the internet since every single packet is transfered on public wires of the internet.

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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.

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.

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.

If it is already confirmed, point me to the court case in which it is confirmed.

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DonovanTrent

If you could harness the energy spent just on typing in this thread, it could power a small town in Kazakhstan for 3 days.

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woj

How the fuck did this thread turn into discussion about p2p and timishifiting?!

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Nautilus

None of the parties involved in the Cablevision dispute touched that "public" side of a stream that was by all other means private.

OK only some % of files will be actually viewed/performed. How does that make your transmission any less of a public performance?

Public communication in context is the Act means that intended recipients of your transmission are the general public, not that it is done by means of public network.

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gideongallery

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

only if you ignore the parallel between the partition stream and the swarm. Both are the same a copy recreated as a bit stream.

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.

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gideongallery

sure they did the content was delivered to the customer over the public internet. the customer who initiated the creation of the file and cablevision were both parties involve in the potentially infringing transaction

ok does the fact that i am a indian man make me less of a white man.

think in terms of being a visible minority
can a white man claim the rights granted to visible minorities just because he is a man. no

the only difference is that it is in reverse, instead of denying rights it denies liablity

a transmission that is public does mean it a public performance

you could have a public performance
and a public transmission that is not a performance.
the first meets the condition of being public performance
the second does not.

the seperation of the performance aspect from the transmission aspect means that transaction doesn't qualify for the liablity, even though they share some common characteristics (being public). Like the white man who can't claim rights granted to visible minorities because he is a man, the liablity for being public performance does not apply to transmissions that are public but only has an independent but secondary private performance after the fact.



exactly the performance is not public, the communication is. The private copy is created from the public transmission. And then after the file is create then an only then does a private performance happen.

The performance that happens from the file is not public. That the point. that the different
that the key reason i can use a cloud to aquire fair use right, why the public nature of the cloud does not automatically invalidate my fair use right. Because the public nature of the cloud is not part of the performance.

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Nautilus

Cloud is not public by nature - it is what you make it to be, for example 100 servers connected within your own private network make it a private cloud.

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gideongallery

i suggest you look up the definition of a cloud, because a 100 servers under your control is not a cloud it a private network

however in this context, in the relationship between the user with the timeshifting right and the provider somewhere on the internet it is the public shared nature.

so for the context of our discussion it i public by nature.
which means my statment still stands

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Nautilus

Well Cablevision case is not about cloud then, because they saved copies at some "Aroyyo server" or whatever which was their own server.

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Robbie

Great stuff Nautilus!

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gideongallery

sure it is
part one is the settop box on the users local tv

that the front end, where the end use starts the transaction of timeshifting. That initiates the request in question

that is transmitted beyond that person network to the cloud thru the internet

the cloud is the entire backend hosted of the internet.
the collective combination of machine, network etc that are necessary to get the copy down to the settop box

if the copy was never accessible from the set top box it would not be timeshifting would it.
in fact it would be totally useless.

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Nautilus

So the cloud and internet are basically the same?

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Nautilus

Thanks

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gideongallery

the cloud would be the combination of the internet, and the private network
think everything beyond your network administrators control (0r in this case beyond your house)

it could be private network and the internet
it could be private network and internet and the virtual circuit you create across other companies networks (bgp peers that cablevision would have across cox local loop)

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Nautilus

So when you're connecting to the torrent tracker through your usual PC, are you in the cloud or in the internet?

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Nautilus

So the performance that happens from the file in not public. And the seeder do not transmit the whole file thus a full copy working copy of the work is not created, meaning his actions are not an infringement.

Does that mean that I can simply split a file into say 100 pieces and put it on my server for everyone to download?

That's not public performance because that's a file, not stream.
That's not creation of full copies because none of the files represent the work a whole.
That's not creation of an unauthorized copy because I bought this movie and have the right to timshift backup whatever.

Is that correct?

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gideongallery

well the swarm is the cloud so the question is a little confusing.

When you first connect to the tracker, you are on the internet, but not in the cloud. The original handshake would be like knocking on the door kind of thing.

Once you are part of the swarm, reporting your pieces the cloud would be all the different machines you connect to, each machine would be a piece of that puzzle, each machine would be acting as a temporary and incomplete cache of the file you want.

It would be very public but it would not be a performance.

once you completed the file you could have a local private copy to play, but the hashing of the file, would still keep it a temporay and incomplet cahce of the file for everyone else (the nature of the pieces). For the purpose of the tracker (assuming private and involved tracker) it would see 1024 pieces stored on machine 102.143.32.5 but each individual machine would only see the pieces they requested. so if five machines were connect to you the five pieces would be seen by each machine respectively.

This weird mesh of virtual connections would be the cloud.


the cablevision equivalent would include your settop box, the internet, the private network, the satalites and cable networks owned by cable visions, and any local loops owned but virtually leased from "competitors".

the cable marketplace is very similar to the telco marketplace after deregulation. with local baby bells owning the local loop and other companies creating Virtual circuits for their customer across those own networks.

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gideongallery

there is a difference between your example and the swarm example i gave you
your example here the people would get all the pieces DIRECTLY from you while the swarm you give the pieces away to multiple people and they share those pieces between them in transactions completely beyond your control (INDIRECTLY).

While the indirect transactional situation would be outside the scope of the actus rea, the direct would not.

It would require a stretching of this ruling and a couple of other to make that arguement. Is it possible yes, and i suspect that youtube will be attempting to do that , because the cache process of the flash streaming does do that.

will they be able to maybe. can that arguement be made explictly now, no.

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Nautilus

1. Is there a law or a court decision that confirms that sharing of copies made for timeshifting between different users is legal?

If there is, does that mean that I can print say 100 copies of a copyrighted work, put them in a box near my house and let every one of my neighbors to take one to provide redundancy of the backup? If my house will burn, I'll get backup of this work from one of my neighbors.

2. In a situation where a leecher doesn't have fair use right, wouldn't both be liable of the creation of an authorized copy?

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