Piracy is a Competitor → Re: hummm

said by 67845017:

I'm an IP lawyer, but on BBR people don't want to hear from lawyers. Blind (willful?) ignorance seems to be easier to live with for some people . . .

said by hopeflicker:

then can you answer my question regarding my previous statement?
"Consider this:

You build your own DVR (or PVR). You record an episode of "LOST", you remove all of the commercials and give it to a friend.
In fact, you recorded the entire season and gave it to a friend commercial free.

So the only thing different here is that the video signal went through your cable box and not your cable modem.

is this legal?"

said by 67845017:This isn’t as simple a question as it would seem on the face of it. But, I think it’s an extension of the Sony timeshifting case. Even though commercials are being removed from the show in your example, I don’t think it alters the analysis.

So, purely in terms of the copyright statute, only the studio/creator/broadcaster or whoever owns the copyright has permission to make copies of the show or enable others to make copies of the show. That being said, we know from the Supreme Court’s Sony decision that timeshifting is legal based on the defense of fair use. It’s from that point that we have to consider your question. Keep in mind that fair use can be very subjective based on the particular facts of the case and arguments can be made for both sides.

First, consider the codified fair use exception in 17 USC 107:

Notwithstanding the provisions of sections 106 and 106A [17 USC § §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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.



Typically courts consider the fourth factor as being most important.

Analyzing the first factor in light of your hypothetical, we can see that the work is not of a commercial nature. You aren’t selling it and you’re not having it sold or distributed for gain. Likely there would be a finding of fair use, even though you are giving it to a friend.

The second factor asks whether it’s a kind of work that should receive the benefits of copyright protection. In this case, the answer is clearly yes. Lost is a non-fiction creative work. Likely there would not be a finding of fair use.

As for the third factor, you are timeshifting an entire season at once and then placing all the episodes together on one or more disks. This would seem to go against a finding of fair use.

Finally, and probably most importantly, is your copy affecting the potential market for the work. Things to consider include whether your copy is as good as the originals. In this case yes--and even more so--because there are no commercials in the copy you made. The whole season without commercials would seem to compete for sales by the studio of their likely future DVD pack of the season of Lost. On the other hand, you aren’t widely distributing the materials and you aren’t posting it online. Still, an argument can be made that you are causing a potential sale of a DVD set from the copyright holder to not be sold. I think you likely wouldn’t be able to get a finding of fair use.

Based on all the above, I would say that technically your example likely isn’t protected under the defense of fair use. So, legally it probably violates present copyright laws. Realistically, I don’t think the copyright owner would ever bring suit. It’s just not worth the time, effort and money.

said by 67845017:

As for the third factor, you are time shifting an entire season at once and then placing all the episodes together on one or more disks. This would seem to go against a finding of fair use.

Finally, and probably most importantly, is your copy affecting the potential market for the work. Things to consider include whether your copy is as good as the originals. In this case yes--and even more so--because there are no commercials in the copy you made. The whole season without commercials would seem to compete for sales by the studio of their likely future DVD pack of the season of Lost. On the other hand, you aren’t widely distributing the materials and you aren’t posting it on line. Still, an argument can be made that you are causing a potential sale of a DVD set from the copyright holder to not be sold. I think you likely wouldn’t be able to get a finding of fair use.

said by guitarzan:Suppose one does time shift the entire season's episodes of Lost without commercials onto a disc or two. Now, there is no intent to share, distribute this IP content through a P2P network,or post it on line, only personal family viewing.

How can an argument be made, using the example cited here, that one is causing a potential sale of a DVD set from the copyright holder to not be sold.?

quote:

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The whole season without commercials would seem to compete for sales by the studio

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IMO its a value versus cost issue. Factor in price for the cable connection or subscription, the set top box and related hardware to copy and archive the content.

In the long run, it may well be cheaper to buy the Lost DVD season from the studio. However, to me, it doesn't make sense to pay for the same content twice. Thus, negating the "lost" sale argument. Plus no commercials is an added benefit.

said by guitarzan:

In the long run, it may well be cheaper to buy the Lost DVD season from the studio. However, to me, it doesn't make sense to pay for the same content twice. Thus, negating the "lost" sale argument. Plus no commercials is an added benefit.

said by guitarzan:

Suppose one does time shift the entire season's episodes of Lost without commercials onto a disc or two. Now, there is no intent to share, distribute this IP content through a P2P network,or post it on line, only personal family viewing.

How can an argument be made, using the example cited here, that one is causing a potential sale of a DVD set from the copyright holder to not be sold.?

quote:

---

The whole season without commercials would seem to compete for sales by the studio

---

IMO its a value versus cost issue. Factor in price for the cable connection or subscription, the set top box and related hardware to copy and archive the content.

In the long run, it may well be cheaper to buy the Lost DVD season from the studio. However, to me, it doesn't make sense to pay for the same content twice. Thus, negating the "lost" sale argument. Plus no commercials is an added benefit.

said by 67845017:

The original hypothetical made mention of transferring the created DVDs to a friend. If only for personal or family viewing, then I think there's no question it's covered under Sony.

said by TechyDad:

I'd add educational use to the list. My wife uses Mythbusters episodes in her science class from time to time to illustrate certain science topics. (Diet Coke and Mentos is good for Chemistry/nucleation. Breakstep Bridge is good for resonance.) What we do is record Mythbusters using our DVR. After watching the episode, if my wife decides that the episode would make for a good lesson, I'll take it off the DVR, strip the commercials, and burn it onto a DVD for her.