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Originally Posted by 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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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That is the court case i am waiting for to start mass producing my torrent recorders.
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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).