Time Shifting Shows via P2P Networks - Legal or Not?

[Jason Dunn]

<div class='os_post_top_link'><a href='http://www.gadgetopia.com/2004/08/15/DownloadingTVShows.html' target='_blank'>http://www.gadgetopia.com/2004/08/15/DownloadingTVShows.html</a><br /><br /></div>"Let's say I have a meeting on Monday nights during the time that Fox's awesome guilty pleasure, "North Shore," is on. I don't have a VCR anymore, so I can't tape it. And I don't have a Tivo either. What am I to do? Well, I can download the show. There are any number of P2P clients out there with which you can get a perfect, full-screen, letterboxed, high-definition, stereo-sound copy of any TV show. An hour-long show will download in anywhere from one to a few hours, depending on the time of day. It's very practical to download a show you missed.<br /><br />So, let's say I download and watch "North Shore." Have I broken any laws? It's not like I stole anything — I'm a paying cable TV subscriber and I have the cancelled checks to prove it. I could have watched the show for free if I was home during the time it aired. Additionally, if I had a VCR, I could have taped it and gotten the same effect — watching the same show at a different time..."<br /><br />My, what an interesting dilemma! This is definitely one of those grey areas that no doubt some of you will fall on either side of. I've actually done this myself - I'm a big fan of Smallville (I'm a comic geek, what can I say?), and before getting a PVR it was always a bit hit or miss as to whether or not the VCR had a tape in it, the show was on at the right time, etc. So, a few times, I jumped on Kazaa to download the show I missed. Would I have paid a couple of bucks to do so directly from the network? Absolutely! Could I do that? No. Does that make it "right"? I'm not sure.<br /><br />On one hand, I understand the argument that as consumers we're paying for what the cable company is offering us, with the limitations under which it's offered. After all, this is why they sell DVD boxed sets of TV shows. On the other hand, if time-shifting with a VCR is legal, is this any different? If I download a radio single from Kazaa, and I doing anything more than time shift? It's something that's out in the public - we're not talking about downloading the whole album (which I very much oppose). I had to laugh when the Supreme Court of Canada ruled that file swapping is legal - there are certainly instances where it should not be, but they didn't seem to see it that way.<br /><br />But I'm rambling. Where do you stand on the issue of using a file sharing network to grab a TV show that you missed?

[Felix Torres]

I would say the legal exposure uisn't for the person who downloads this, but the person *uploading* it.
They're the ones publishing it.
They're the one violating copyright and contracts and what-not.
The people getting sued by RIAA aren't merely downloaders; they're *uploaders*.
Big difference.
Of course, once the broadcast flag limits come into play, so does DMCA, at least on this side of the border, anyway.

[dean_shan]

Legal all the way. I do it all the time. I think downloading episodes is what gives shows a larger audience. I know that for a lot of people, the only time they saw Family Guy is by P2P download. People really got into the show. Then Fox put it on DVD and that sold like hotcakes. The DVDs sold so well that they are planning to put Family Guy back into production. Sharing TV only helps the industry.

[Edited for grammar, was I asleep when I wrote this?]

[David Horn]

I do it. The new Stargate episodes aren't going to air in the UK for months, so I download them now. But I'll watch them when they come out on Sky and I'll have paid for my subscription.

[Jason Dunn]

Come on, surely more than THREE of you have opinions on this? :wink:

[JTWise]

I have never done it personally (don't like the idea of loading a P2P client on my computer), but I really don't see a problem with this. In my opinion this just increases a shows following.

[Felix Torres]

Come on, surely more than THREE of you have opinions on this? :wink:

Well, now, sir; if you wanted response quantity, you should've asked at slashdot or groklaw. :twisted:

Here you'l only find quality responses.
(hack)
(cough)
Almost swallowed my tongue there... 8)

[butch]

I think it must be as legal as downloading the MP3 of a song you just missed on the radio. No?

[butch]

I think it must be as legal as downloading the MP3 of a song you just missed on the radio. No?

But humm... that true, you cannot go to the store and buy this episode... so I don't know...

[Jason Dunn]

I think it must be as legal as downloading the MP3 of a song you just missed on the radio. No?

Well, according to the RIAA, that's NOT legal. I think it's morally permissible though - it's something that's out in the open. I've downloaded music videos that I've wanted to watch but have missed on the music stations.

[oopl]

I don't see anything wrong with downloading tv episodes. It's like having someone else record the show for you and they let you have a copy of it.

[Mojo Jojo]

I wasn't going to respond because my own position is murky... with the call to post however... :)

First off the cuff response... sure... maybe... uh.

Now the murky devils advocate part. Do you fast forward through commercials, or are they already removed? As the companys that make the shows sell them to broadcasters (they aren't free) the broadcasters recoup their money by selling advertisment. So Broadcast is free to you... perhaps if you don't watch the commercials, how the show was intended to be viewed, by downloading and skipping your breaking the basics of the 'contract'.

As for the cable idea that your subscribing so now that you paid it is also yours. Well this could be murky too. Your paying for the transmission of these broadcast channels and services to your house, but you do not own the rights of what comes across. Your are still subjected to the laws surronding the shows (rebroadcast, taping, distributing, etc... )

So read that how ever you like. What really needs to happen is that someone needs to review the laws written before these devices and still see if they make sense today. However those that stand to lose money will be those that drag their feet the longest.

[gdoerr56]

As always an interesting topic.

There have been many instances throughout history where an established industry fights to hold on to an established business model in the face of a 'better way'.

The RIAA was totally up in arms when the orignal VCR technology first became available. Ampex, the US company that invented the helictical scan technology that made VCRs possible, did not comercialize the technology, at least in part, due to rumblings from the entertainment industry that it would be significantly impacted.

The Japanese undertook the long battle for VCRs to get them pushed through as they had the foresight to see the size of the potential market and because, even if you recorded a show, moving that to large-scale distribution was (and is) HARD and typically resulted in a copy with pretty poor quality.

The issue at hand today is that with digital technology, anyone can record some content (Music, TV, Movies, it doesn't matter) and make a perfect copy available to anyone who cares to download it.

The RIAA never agreed that time-shifting or the the sharing of taped shows was acceptable. They simply gave in because, in practice, the large scale sharing was not feasible. This is the argument they are making today.

Perhaps what we need is a new business model. Book publishers were not put out of business by the copy machine (although some did make noise about it!). They simply produce a product at a cost that makes the duplication of the product economically unattractive.

I believe the real answer to this is to get the cost of content down to where it should be based on value. It does not make any sense to me that I pay $10 to $15 for a CD when I can buy a DVD of a move that cost several times more to produce for $20. If I could a buy CD or it's downloaded equivalent for $5 or less (and I OWNED the result, no way for them to revoke my 'license') I would be more than happy to buy the content as would be easier than copying. There will still be cases where copying/sharing happens due to regional availability but these would likely be in the minority.

Most consumers will pay a reasonable amount for convenience....

[Mojo Jojo]

I don't see anything wrong with downloading tv episodes. It's like having someone else record the show for you and they let you have a copy of it.

Devils advocate again...

The first illegal act isn't negated because of transmission from one party to another. Rewording your phrase to illustrate.

"I don't see anything wrong with stealing. This is like having someone else steal for you and they let you have some of the profit."

Yes, we are altering degrees of morality here but the message is the same. I do not think taping a show is somehow equal to breaking into someone's house and stealing things, but in the eyes of the law it is still wrong.

Broadcasters own all rights to showing and distributing TV signals. We rarely see the disclaimer but each day before they go to test signal, or early in the morning the broadcasters and cable networks all lay claim to the material they present.

[Jason Dunn]

I do not think taping a show is somehow equal to breaking into someone's house and stealing things, but in the eyes of the law it is still wrong.

Taping a TV show is wrong in the eyes of the law? What country do you live in? :-)

[Mojo Jojo]

Taping a TV show is wrong in the eyes of the law? What country do you live in? :-)

The United States. :)

The law reads that VCRs are not illegal because there is "substantial noninfringing uses." But recording *certain* shows is. Any show that is copyrighted can not be recorded legally without breaking copyright law. Most people however don't know this and do so anyways. So it is legal for Sony (et all) to sell you the VCR, what you do with it however is different.

Some links for reading...

http://www.gigalaw.com/articles/2001-all/isenberg-2001-11-all.html

http://www.winsupersite.com/showcase/windowsxp_mediacenter_copy.asp

http://writ.news.findlaw.com/commentary/20020509_sprigman.html

As you can see, even the law is muddled here. You can go ahead and record a show, but you can't remove commercials or fastforward through them, nor are you supposed to share with a friend. If the show is copyrighted however the broadcast company has all rights to the show and could say your copy is illegal if they choose to (and bring just about everyone with the a VCR to court).

I think, its all confusing.

Of course this is all currently being challanged


Edit: Some more info...

This blurb is cut from 'Paramount Pictures Corp. v ReplayTV & SonicBlue' and submitted in court.

"Copying a copyrighted program or film with a digital video recorder is a violation of the exclusive rights of the copyright owner under Section 106 of the Copyright Act. Such copying is entirely distinguishable from the type of copying which, in narrow and different circumstances, might be defended as a fair use. Copying programming for playback with defendants’ AutoSkip feature effectively circumvents the means of payment to copyright owners for the programming being viewed and therefore their ability to fund it. Viewers will continue to be able to watch the program, but the copyright owner will be deprived of the means of obtaining payment for the programming. Defendants’ copying-and-commercial-deletion scheme thus constitutes copyright infringement. As discussed below, the conduct also constitutes a violation of California law.

Section 106 from the Copyright Act...


Sect. 106. Exclusive rights in copyrighted works
Subject to sections 107 through 120 [17 USCS Sects. 107-120], the owner of copyright under this title [17 USCS Sects. 101 et seq.] has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.

so.....

In making copys you are infringing on the copyright owners rights. Which is illegal. :D

[Jason Dunn]

Thanks for the detailed post - it sure seems strange that recording a show on a VCR and fast forwarding through the commercials (which I would think everyone does) is illegal. :?

[Mojo Jojo]

So is kissing your neighbor after a certain time on week nights in some states. Along with walking elephants on main street etc etc... :D

The basic fact is law can be weird and there are lots and lots of copyright lawyers.

Read the second link, some interesting things with Windows Media PCs. They are skirting the law (not breaking) by allowing you to record. If Broadcasters added one little signal to show that the show your watching is copyrighted, your Windows Media PC won't be able to record it.

Digital Media really needs some proactive people challenging the laws, as most laws are put in place to protect business models and not the consumers rights.

[Altaman]

I wasn't going to respond because my own position is murky... with the call to post however... :)

As for the cable idea that your subscribing so now that you paid it is also yours. Well this could be murky too. Your paying for the transmission of these broadcast channels and services to your house, but you do not own the rights of what comes across. Your are still subjected to the laws surronding the shows (rebroadcast, taping, distributing, etc... )

Mojo Jojo this would be correct if the channels were not making any money off the satellite/cable companies, but they do! In essence the cable/satellite companies make money on getting the channels to you and they pay the channels based on where the channel sits in the tier pricing levels.

It would be nice if the only cost we had to pay to get the programming into our home what the cost to get it there as rates would would fall considerably. Take here in Canada, Star Choice is/was trying to move some channels so they could decrease the amount they paid to some of them based on their tiers. They were also trying to move the WeatherNetwork in with some other channels and you would have to pay I believe $5.99 or $6.99 a month with the others to get the channel. They are currently sitting with the essentials, meaning everyone who subscribes gets which gave the weathernetwork a much higher penetration and more $$ due to the fact that while lower amount of $ paid per subscriber, more subscribers.

Oh and I beleive it is alright to download for the program for personal use as long as you are not passing it out to friends/neighbours.

Alt

P.S. I think DTM needs a Digital Cable/Satellite forum :D

[Crocuta]

This blurb is cut from 'Paramount Pictures Corp. v ReplayTV & SonicBlue' and submitted in court.

"Copying a copyrighted program or film with a digital video recorder is a violation of the exclusive rights of the copyright owner under Section 106 of the Copyright Act. Such copying is entirely distinguishable from the type of copying which, in narrow and different circumstances, might be defended as a fair use. Copying programming for playback with defendants’ AutoSkip feature effectively circumvents the means of payment to copyright owners for the programming being viewed and therefore their ability to fund it. Viewers will continue to be able to watch the program, but the copyright owner will be deprived of the means of obtaining payment for the programming. Defendants’ copying-and-commercial-deletion scheme thus constitutes copyright infringement. As discussed below, the conduct also constitutes a violation of California law.

In making copys you are infringing on the copyright owners rights. Which is illegal. :D

You're making a broader conclusion than what it being argued here. And note this is an argument by a plaintiff and not a ruling by a judge, so it's just an opinion at this point. Even so, it is not arguing at all that copying for later playback violates the copyright owners' rights. In fact, it acknowledges that simple copying and playback "might be defended as a fair use", which is just lawyer-speak for 'actually is fair use according to the Supreme Court, but we don't want to give our opponents any latitude'.

What they're arguing here is that having the Replay device automatically skip commericals violates the copyright owners' ability to earn a living from distribution of the product. Since they are selling the potential for you to see the commercial (not a guarantee that you will, as even with live broadcast you may leave the room, pick up a magazine, etc.), the automatic bypassing of the commercial means you have no chance to see it. That is a completely different argument than whether time-shifting is considered 'fair use', which it has already been for two decades now.

Even the article you link to from the intellectual property attorney doesn't question that. He points to two issues at stake here. First, can they automatically skip commercials? Second, can you send your commercial-free show to a friend or neighbor to watch on their Replay? Regardless of the outcome of these questions, these do not impact on the existing rights you have to record your own broadcasts on a VCR or DVR and replay them for your own use later.

One of the other articles you link to also addresses this, saying, "...in 1984, the US Supreme Court ruled that home taping of broadcast television shows constituted "fair use" and that such activity was not a violation of the network's exclusive content reproduction rights."

So while technology has once again given us a new set of opportunities to deal with, your original contention that "any show that is copyrighted can not be recorded legally without breaking copyright law. " is simply not correct. The Supreme Court says it's legal for me to record any show for my own use, so it's legal.

On this other issue that Jason first addressed here, well that's exactly what the Replay case it going to decide, isn't it? Is it legal for a digital copy of a publicly broadcast TV show to be transmitted to someone else? We'll just have to wait and see how that one turns out.