I've already addressed where fair use helps, so I won't repeat that. 

As for your question, the issue "is in play" and I don't think any court of competent jurisdiction has ruled on whether time-shifting is licit or illicit. I'd also offer that no consumer should bring such a case, because they would lose what they already have.

Yes, a content owner/distributor can signal that you cannot record content, and many devices will not do this when CGMS-A signals such.

Think of "fair use" as the IPR equivalent of an "entrapment" defense.  It might work at trial, but it won't keep you out of court.

John Willkie

-----Original Message-----
From: dan.grimes@xxxxxxxx
Sent: Jun 26, 2008 8:44 AM
To: opendtv@xxxxxxxxxxxxx
Subject: [opendtv] Re: MPAA wants to stop DVRs from recording some movies

I guess I'm getting my history and laws mixed up. I was under the impression that there is an element of "fair use" when it comes to media, no matter which delivery platform (OTA, MVPD, physical) the media is received. I realize there is no specific law that provides this "fair use" but there are plenty of court cases that have upheld this philosophy. Perhaps it is very complicated since there is no particular law out there that defines fair use. Certainly, there are laws as to what it means to hold copyright and if that is being infringed upon. Many court cases have attempted to provide the line between copyright and fair use.

So, one question is, does the ability to time-shift a movie (i.e. record on a DVR) that is received through an MVPD violate copyright? I would argue not, but certainly the MVPD wants to control the ability for the populous to record, thus protect, it's material.

The other question is, can the owner of media prevent you from recording the media; in other words, does this violate fair use?\

Dan


"Adam Goldberg" <adam_g@xxxxxxxxx>

"Adam Goldberg" <adam_g@xxxxxxxxx> Sent by: opendtv-bounce@xxxxxxxxxxxxx 06/26/2008 06:43 AM Please respond to opendtv@xxxxxxxxxxxxx

To <opendtv@xxxxxxxxxxxxx> cc Subject [opendtv] Re: MPAA wants to stop DVRs from recording some movies

...

Whether there’s a right or not gets down to lots of things, but among them is Fair Use, which is an element of the first amendment. Someone with more philosophy than me can determine whether that’s a civil right or whatever.