[opendtv] Re: MPAA wants to stop DVRs from recording some movies
- From: "Adam Goldberg" <adam_g@xxxxxxxxx>
- To: <opendtv@xxxxxxxxxxxxx>
- Date: Thu, 26 Jun 2008 16:15:41 -0400
John,
To the contrary. Sony v. Universal (“Betamax”) held precisely that time
shifting is non-infringing. It did not (directly) address whether librarying
is non-infringing or not, it didn’t reach that point, as it only had to find
that there was (a) substantial non-infringing use, and (b) devices with
substantial non-infringing uses are perfectly legal.
Dan,
Fair use is codified in a law. Here it is:
---
17 USC 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair
use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use
if such finding is made upon consideration of all the above factors.
---
And, John is right here, Fair Use is a defense. In order to reach whether a
specific use is fair or otherwise, you need to be sued for copyright
infringement, and part of your defense (or all of it) may be that “This use is
Fair (see 17 USC 107)”. The Judge needs to take into account the four factors
in Section 107 and rule, in your specific circumstances, whether that was a
Fair Use or not.
One of the arguments in favor of Boucher’s H.R. 107 (and H.R. 1201) is that
there is a real conflict between Fair Use and the DMCA Section 1201
(anti-circumvention). A particular use of content may be fair (e.g., would
qualify under section 107) and therefore not infringing, but you are
technologically prohibited from accessing it (copy protection, DRM, whatever)
and circumventing the copy protection is a crime (even if the end result of
what you’re trying to do isn’t infringing). One objective of Boucher’s bill is
to limit 1201 such that it is NOT a violation of 1201 if there is no underlying
infringement – you can circumvent if you’re not infringing.
From: opendtv-bounce@xxxxxxxxxxxxx [mailto:opendtv-bounce@xxxxxxxxxxxxx] On
Behalf Of John Willkie
Sent: Thursday, June 26, 2008 1:06 PM
To: opendtv@xxxxxxxxxxxxx; opendtv@xxxxxxxxxxxxx
Subject: [opendtv] Re: MPAA wants to stop DVRs from recording some movies
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 t he
media; in other words, does this violate fair use?\
Dan
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[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.
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