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Posted by PTravel on 02/08/07 03:14
"Colin B" <Colin B@cb.org> wrote in message news:45ca8bd8$1@clear.net.nz...
>
> <ptravel@travelersvideo.com> wrote in message
> news:1170203953.011518.323160@p10g2000cwp.googlegroups.com...
>> On Jan 30, 3:06 pm, "Steve Guidry" <steveguid...@earthlink.net> wrote:
>>> It just changes the form, and it's for the original viewer's use.
>>>
>>> How is that different from you copying a DVD or other show to your
>>> computer
>>> to watch on a plane ? (something I think you said probably was OK ).
>>
>>
>> Copying a DVD to a computer to watch on a plane is _probably_ fair
>> use . . .
>> if you do it for your own use. In your hypothetical, you were doing
>> it for someone else.
>>
>> Note, too, that the decisions that are the predicate for this kind of
>> medium shifting, Sony v. Universal and the MP3 decision (the name of
>> which escapes me at the moment), didn't consider creation of a
>> replacement copy that would be, essentially permanent. For instance,
>> one of the fundamental factual assumptions in the Betamax case was
>> that people would _not_ compile a library of time-shifted, protected
>> expression.
>
> Now that DVD recorders are used by a lot of people to "time-shift" their
> TV shows etc, how long is considered "permanent"? Who is going to know
> whether you keep a copy of a TV show for 1 week or 1 decade? And if you
> record the show on a non-rewriteable disk, are you supposed to throw the
> disk away after you've watched the show? Or are you supposed to record
> only on rewriteable disks so that you can erase the programme as soon as
> you have watched it? And should I be digging through all my old VHS tapes
> and erasing any that have old TV programmes on them (even though I never
> use my VHS player now)?
You're looking at this wrong.
I told you one of the the factual predicate for the Betamax decision. That
decision is nearly 30 years old and the technology, as well as the way it is
used, has changed dramatically. Because the factual predicate has changed,
the rationale of the Betamax case may or may not apply to what you want to
do.
Bear in mind that fair use is an equitable doctrine, meaning the judge
considers what is fair, is intensely fact specific, i.e. there are very few
bright line rules of general applicability, and will be applied only in the
context of a defense to a copyright infringement lawsuit, which is to say
but for the availability of a fair use defense, the specific conduct is
copyright infringement.
>
>>
>> Finally, remember that one of the fair use factors is the effect on
>> the market for the original. As I recall, the original question
>> addressed a VHS of a television show that would be transferred to
>> DVD. Given the huge numbers of old television shows that have been
>> released as DVD editions, it clearly would hurt the market for the
>> original (and remember, the original is the television show on video,
>> not necessarily on VHS).
>
> I have always thought that copyright law should be based on one simple
> question, which is: "Is it likely that the copyright holders will lose
> money as a result of the item being copied or stored permanently?"
Why? Content creators are concerned with the integrity of their expression.
My favorite illustration of this involves a compose I know who worked on a
musical version of "Catcher in the Rye." He worked on this for several
years and produced what I thought was a pretty good show. Only problem was,
J.D. Salinger didn't want Catcher in the Rye adapted to any other medium --
_his_ expression of the ideas in Catcher in the Rye was complete with the
publication of the book. The compose was completely out of luck -- there
was nothing he could with his show that he had invested years in.
Salinger didn't care about the money. He cared only about the integrity of
the expression that he created.
The Constitution vests authors with exclusive rights to their works for
limited terms. "Exclusive," means just that -- the power to exclude.
> You say above that copying a TV show from a tape to a DVD clearly would
> "hurt the market". I think this would be very hard to prove in many
> instances, particularly where only one episode was to be transferred to a
> DVD from tape (as was the case put forward by the original poster). I
> certainly wouldn't bother taking someone to Court if I was the copyright
> holder and I learned someone either held on to a tape of one episode
> "permanently", or copied the tape to a DVD of this one episode.
Apples and oranges.
The test for effect on the market is a simple one: does creation of the
transformative work for which the defense of fair use is sought make it less
likely that there will be a market for the original? Obviously, if you've
already made yourself a DVD, you're not going to go out and buy one -- that
effects the market for the original protected expression.
As for whether you'd be sued or not, that's not a legal question.
Obviously, no one is going to poke around in your home video collection.
However, the fact that you woudn't get caught is irrelevant to the question
of fair use.
> If all the episodes of a TV show were being copied from tapes to DVDs for
> the purpose of compiling a permanent library, then this might be
> different, but I doubt even in these circumstances whether any copyright
> holder would bother suing an individual over this. I don't think I'd
> bother suing a commercial copying company in these circumstances either.
That's because you're not a content owner who has to protect intellectual
property. I routinely sue relatively de minimus infringers because my
clients wish to send a message to other infringers about their willingness
to protect their rights. IP lawsuits are not profit centers, nor are they
viewed as such by the businesses that bring them.
>
> Are there any recorded instances of individuals being sued for keeping
> recordings of TV shows for too long, or for copying them from tapes to
> DVDs?
I have no idea. Why is that relevant to this discussion?
>
>
>
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