A legal and moral question about downloading...

July 16, 2009 11:39 AM

A moral question about downloading...

Downloading a box set TV series is bad. I get that. Legally wrong.

To me, downloading a TV program such as Top Gear (ie, a program on a free-to-view channel) is legally dubious but morally okay since I would have been freely and legally able to record it off the TV when it broadcast.

My question is this - what about programs which will be released on DVD in the future...?

On one hand, they were broadcast for me to download and record freely. On the other hand, it won't be long before doing so would be the equivalent of downloading from a box set.

Which way does the moral compass point...?

posted by twine42 to law & government (39 answers total)

It's been a while since I was in a position to give official religious advice. But here goes (this is not legal advice, and I am not your lawyer. This is moral/religious advice):

If you feel enough doubt about it that you have to ask, then you shouldn't do it - from a moral perspective. There may or may not exist moral absolutes in this world. But when you already feel guilty enough to ask, you should stay away from it.
posted by The World Famous at 11:43 AM on July 16, 2009

The reason that so many people have trouble understanding copyright law is that morality has nothing to do with it. Downloading TV programs isn't "dubious", it's illegal. The availability of a good for free through some channels but not others doesn't change the legality of unauthorized redistribution. That you feel justified somehow in breaking unenforceable laws is irrelevant.
posted by GuyZero at 11:45 AM on July 16, 2009

Still illegal. You are not authorized to redistribute this to yourself. Leave it on your TIVO as long as you like before you watch the program, if you like, though.

neverthless, I've always wondered why I should pay for updated distributions of the same product (i.e., I own a copy of Who's Next by The Who on cassette; why should i pay full price for the same thing on DVD or download)
posted by teg4rvn at 11:53 AM on July 16, 2009

Seconding that law is not morality. It's social conditioning and enforcement.

You should go with what feels right to you, we cannot be your compass.
posted by tybeet at 11:56 AM on July 16, 2009 [4 favorites]

Would you have bought the DVD but for your downloading? If so, then downloading it was morally wrong. You can still buy the DVD and say three Hail Marys in repentance for your sin. If you were never going to buy that DVD anyway, then your soul is pure on this matter.
posted by caddis at 12:05 PM on July 16, 2009

From a purely moral standpoint, you should probably stick to downloading things which are public domain.

If we are speaking strictly of morals, even downloading content which you have already purchased is still a gray area(when you purchased said content you no doubt agreed to a lengthy and exhaustive license and from a moral standpoint its better to hold to your word and obey the license than risk violating the terms you agreed to).

Err...I should follow that advice myself...
posted by satori_movement at 12:07 PM on July 16, 2009

On one hand, they were broadcast for me to download and record freely. On the other hand, it won't be long before doing so would be the equivalent of downloading from a box set.

As with any ethical question this is more about you and your personal ethics than anything you can get a definitive answer on.

I can give you an example of a stance that other groups of people have taken though: In the fan episode trading communities (such as anime fansub groups or the Digital Archive Project) the general rule is that you should only trade episodes that are not widely available (i.e. are not in print in the form of DVDs or currently shown on TV). Here's DAP's statement on the issue, which is a pretty common stance:

Because the DAP wholeheartedly supports a content creator's right to make a profit of his work, we limit our attention to shows that, while popular, aren't necessarily available otherwise. This precludes anything that is currently available (in print) on DVD or VHS, or is currently aired first-run or in wide syndication. This means that as existing DAPs are released on DVD or other medium, we will remove them from the Master List and no longer condone their distribution on the internet.

If you already have some of these episodes when we retire the DAP, consider it your own dirty little secret. However, we do ask that you refrain from distributing them. Even better, go buy the DVDs anyway. You cheap bastard.
posted by burnmp3s at 12:09 PM on July 16, 2009

To me, downloading a TV program such as Top Gear (ie, a program on a free-to-view channel) is legally dubious but morally okay since I would have been freely and legally able to record it off the TV when it broadcast.

I want to say that I've noticed something that people seem to forget about free-to-view channels: they're not free to view. You're essentially "paying" for them by watching commercials--it's the assumption that the audience will watch commercials that allows these shows to be funded and broadcast.
posted by PhoBWanKenobi at 12:13 PM on July 16, 2009

If you really want to get technical in terms of morals, isn't recording any show and not watching the commercials pretty dubious?
posted by mattsweaters at 12:15 PM on July 16, 2009

Matt,

How so? I never signed a contract that said, "I agree to watch all commercials". According to your logic, wouldn't it be equally dubious to leave the room during a commercial?

As to the question above: You can justify this any way you like. Heck, I even agree with you. But it's still not legal. So the question is rather whether the law governing this question is inherently moral or not. And that's a different discussion. Some laws may be immoral in some sense. Oh my. Can of worms, no?

Answer: It's illegal, you are justifying your illegal action, the morality is undecided.
posted by GilloD at 12:22 PM on July 16, 2009

Well, VCRs were dubbed "time-shifting" — you saw the programs, but you still had to deal with commercials. The takeaway is that advertising is what pays for television. The bill comes to us in the form of having to endure commercials in exchange for watching the programs.

When you buy the box set of DVDs, you no longer have to watch commercials every seven or nine minutes. Here, you are paying the bill for the programs by cash or credit card, rather than eyeball time and mindshare.

With that in mind, downloading a box set of DVDs eludes both bills — the show has not been "paid." That's where your nagging feeling comes in.

We must then marshal arguments against that feeling:

1) Just about any DVD I buy now advertises to me anyway, even though I'm paying for the privilege to watch them. More annoying, they put in annoying MPAA "don't pirate" commercials in the unskippable parts which were previously reserved just for Interpol warnings. So, they are trying to get double payment for the show and they're breaking something that never quite made it into regulation.

Counterargument A: Most pirated or torrented files rip out the advertising, so you're still getting something for nothing.

2) The show has already been "made" and paid for.

Counterargument A: The network invests in the pilot, but they're working on a hostage model for advertising to get further episodes made. Not enough eyeballs, the show gets cancelled. Countercounterargument: What if the show has already been cancelled? Countercountercounterargument: Imagine downloading M * A * S * H; it was over before the idea of folks having shiny discs with their favorite shows on it gained any kind of appeal, but the actors probably still get residuals, if they have the right deals.

Counterargument B: What if the show's "business model," like many movies today, accounts for and expects DVD sales later plus advertising now, rather than just advertising now, in its budget? Countercounterargument: What do we owe, if anything, to the budgets and business models of others?

Generally, I pitch the categorical imperative for individual civil liberties (who you marry), but it isn't unhelpful for describing the free rider problem, that is, "What if quite a few people took this to be a good thing to do, would it have a systemic impact on that product?"

You could go pretty far down the rabbit hole with this one.
posted by adipocere at 12:24 PM on July 16, 2009

If you recorded it and now want to move it to another media for your own private use, (TiVo to hard drive) then you are ok. If you are downloading it from someone else who recorded it, you both are crossing the legal and moral line. It is the same line by the way. I can record my Who Quadraphenia album onto my hard drive to load into my mp3 player, but I cannot give those files to others to use. Same as TV. Watching the commercials has nothing to do with it. You are not stealing if you get up and get a beer during a commercial. You are not doing anything wrong by fast forwarding the commercials on your TiVo.
posted by JohnnyGunn at 12:29 PM on July 16, 2009

I base very few to none of my buying decisions off of commercials, therefore I feel justified in not watching them. And using commercial skip is no different than changing the channel or taking care of something during commercial breaks.

In terms of games, piracy has actually encouraged me to buy more rather than less. I don't think I would have gotten to know how fun some games were without being able to play pirated versions with my friends.

My guideline with downloading is that if I was going to buy it anyways, I don't pirate it. Or I pirate it so I can watch/listen/play it faster and buy it later. Buy what you feel is most worthwhile. Pirate the rest. Try to distribute your purchases to be fair. If you're re-watching it or keep listening to it after a month or still playing that game, buy it. If you downloaded an album but only listen to the single, pay for the single at least.
posted by JauntyFedora at 12:30 PM on July 16, 2009

PhoBWanKenobi: Top Gear is on the BBC, a channel made in the public interest paid for by licence fee payments - there are no adverts.

To me, downloading a TV program such as Top Gear (ie, a program on a free-to-view channel) is legally dubious but morally okay since I would have been freely and legally able to record it off the TV when it broadcast.

Lets look at the reasons why you feel this. Presumably, you feel this because

1.you paid your licensce fee - which by fair use permits you to record programs.
2.Recording is making a copy of the image you saw, Downloading is making a copy of the image someone else saw - the result is the same, but there is a rights violation in the latter.

Either: a) you hold a deontological view, and think that rights and there violations are what determines the rightness or wrongess of an action. Or: b) You are a consequentialist and you think that what determines the rightness or wrongness of an action are its consequences.

So if you're a consequentialist you can be ok with downloading when their is no DVD. However, its different when there is. Not only would you have to way the costs to the artist and producer of the work of you not paying them (probably low). There is the precedant that you set, what if everyone didn't pay, for example? As such you would be permitted to do it if you were an Act Consequentialist, but not if you were a Rule Consequenialism. Generally most people prefer to be rule consequentialists, as act consequentialism could justify all kinds of things, like killing people when it was expedient etc.
posted by munchbunch at 12:37 PM on July 16, 2009 [1 favorite]

How do libraries fit into this model?

They "redistribute" items (albeit items that may not be kept) on a large scale akin to how torrents and the like do. Torrents are just a technologically advanced library, no?
posted by teg4rvn at 12:37 PM on July 16, 2009

Teg4rvn...libraries have the right to loan out their books...Torrents, not so much.
posted by munchbunch at 12:41 PM on July 16, 2009

Libraries are also funded with public dollars. You "paid" for those books.
posted by GilloD at 12:48 PM on July 16, 2009

How about this: there's a movie I want to watch, I missed it in the theatres. I subscribe to netflix (3 at a time), and I don't come anywhere close to taking full advantage of my subscription ("The Dark Knight" has been sitting on my coffee table for 2 months now). I know for certain that this movie I want to watch will be available on netflix in 4 months. I've been subscribing to netflix for 4 years and have zero intention of stopping. I always skip the previews on rented DVD's.

Now, of course it's illegal to just download the movie from a torrent site, but is anyone going to lose any income by me doing so? No. Is it wrong? OK, via a torrent I'm uploading to other people who may be depriving the industry of $$. So let's say I'm downloading via a point-to-point, Napster-style protocol. Now, am I doing anything wrong? I'm gonna say it: no, I am not.
posted by ripple at 12:54 PM on July 16, 2009

Which is the classic argument pirates make: I would not have paid for it anyway, so no revenue has been lost.
posted by GuyZero at 1:06 PM on July 16, 2009

Now, am I doing anything wrong?

Well, by downloading the pirated content, one could* argue that you are encouraging the pirating of content.

* I'm not, but someone could.
posted by JaredSeth at 1:18 PM on July 16, 2009

How about this: there's a movie I want to watch, I missed it in the theatres. I subscribe to netflix (3 at a time), and I don't come anywhere close to taking full advantage of my subscription ("The Dark Knight" has been sitting on my coffee table for 2 months now). I know for certain that this movie I want to watch will be available on netflix in 4 months. I've been subscribing to netflix for 4 years and have zero intention of stopping. I always skip the previews on rented DVD's.

Because since you've lost some money, and someone in the industry has gained some money, everything's squared off? That's a pretty dodgy rationalization.
posted by tybeet at 1:18 PM on July 16, 2009

Which is the classic argument pirates make: I would not have paid for it anyway, so no revenue has been lost.

Which is a self-fulfilling justification. Of course one isn't going to pay for something if one can morally justify getting it for free.

As munchbunch points out, you have a strong moral argument that your TV license has paid for the program and there are no advertisers losing out. The sticking point, then, is that presumably the content owner would prefer, for whatever reasons good or bad, that people either watch the program live or record it themselves but not trade recordings.

You have to ask yourself whether it is immoral not to respect the wishes of the content owner, who is either the content creator or an entity that the content creator ceded the rights and management of the content to. Ultimately, then it's about respecting the wishes of the content creator.

As I see it there are two main arguments for respecting their wishes in this case. One is the categorical imperative, i.e. that you think it would be best if everyone respected the rights of all content owners always, within the bounds of the law. You may or may not agree with that sentiment.

Another is that, although you may be morally or even legally justified in downloading this particular program, doing so indirectly contributes to the weakening of respect for copyright and the viability of websites like the Pirate Bay, which depend on a critical mass of torrents, legal and otherwise, to be successful. Thus, even though this particular download might be justifiable in a vacuum, it contributes to unjustifiable downloading, and so cannot be justified in light of its side effects.
posted by jedicus at 1:22 PM on July 16, 2009

You have to ask yourself whether it is immoral not to respect the wishes of the content owner, who is either the content creator or an entity that the content creator ceded the rights and management of the content to. Ultimately, then it's about respecting the wishes of the content creator.

I agree with your overall argument that the intent of the content owners and creators are important, but in the case of television in particular it's very common that the content creators and content owners are different people with different wishes. For example, it's not uncommon that the creators of old TV shows that have no hope of ever being released on DVD to condone or even take part in distributing digital copies of the show over the Internet.

One is the categorical imperative, i.e. that you think it would be best if everyone respected the rights of all content owners always, within the bounds of the law. You may or may not agree with that sentiment.

Note that this extreme of a position would result in some fairly ridiculous situations when television shows are never released on DVD, such as members of the cast of a television show not being able to watch copies of the shows they themselves performed on, or not being able to show copies to members of their family who were not alive when the show originally aired.
posted by burnmp3s at 1:57 PM on July 16, 2009

Because since you've lost some money, and someone in the industry has gained some money, everything's squared off? That's a pretty dodgy rationalization.

I'd go as far as to say that if I'm mailing back netflix DVD's a few times a week, then downloading a flick is probably depriving someone of revenue and is wrong. I don't think it's "dodgy", it just involves me keeping careful track of my netflix use - if I'm anywhere near to where it's questionable, then I shouldn't download.

If I'm "weakening the respect for copyright" by doing this, then so be it. Maybe it will encourage the TV and movie industries to get with the 21st century and start releasing things simultaneously via different distribution channels -- if there was no 4-month gap between theatrical and DVD release, I'd be unable to justify pirating anything.
posted by ripple at 1:57 PM on July 16, 2009

I would have been freely and legally able to record it off the TV when it broadcast.

In whichever supreme court case it was which more or less upheld the right of people to use VCRs, the court rules that time-shifting (i.e., you wouldn't be able to watch a show at the time it was broadcast) was a legitimate, fair use defense against copyright infringement. But archiving was not. I.e., you could record a show to watch once if you didn't watch it when it was actually broadcast, but you couldn't necessarily record it to watch over and over again.

Now, I know that's addressing the legality, not the morality, of recording, but I personally think the legality is pretty close to the morality here. So you could download an episode to watch once if it was freely available to you when it was actually broadcast but you didn't watch it then (regardless of whether it's being released on DVD or not), but you couldn't download it to watch more than once (regardless of whether it's being released on DVD or not).

I want to say that I've noticed something that people seem to forget about free-to-view channels: they're not free to view. You're essentially "paying" for them by watching commercials

I have to disagree with that. No one is forcing me to watch the commercials. I could (and often do) change channels during the commercials. I could (and often do) put in a load of laundry or surf the internet or open mail during the commercials. The advertisers are paying for the show, with the hope—but not with the guarantee—that you'll watch the commercials. I'm not paying for the show either directly or indirectly; the advertisers are choosing to give me the show for free. I am free (both morally and legally) not to watch the commercials, and the advertisers are free (both morally and legally) to stop paying for the show. If advertisers find that not many people are watching the commercials, they may decide they're not as willing to pay as much for them, but that doesn't create a moral obligation in me to watch the commercials. At the same time, if I'd like the paid-by-advertising/free-to-the-viewer model of television to continue, perhaps I should choose to watch the commercials so it can continue. (In fact, for this very reason I choose not to use an ad-blocker when web surfing, but I don't think one is morally obligated not to use an ad-blocker when web surfing.)
posted by DevilsAdvocate at 2:03 PM on July 16, 2009

How do libraries fit into this model?

Google "Doctrine of first sale."

Torrents are just a technologically advanced library, no?

No. In fact, some libraries do license electronic content and make it available for download. And when they do, they have generally only licensed a certain number of copies to be digitally "checked out" out at any given time. DRM is used to ensure copies are "returned" (not available to the borrower) after the check-out period. (And yes, we're all aware there are technological means to make and retain a copy beyond the DRM-enforced period, but that's a technological answer, not a legal or a moral one.)
posted by DevilsAdvocate at 2:12 PM on July 16, 2009

If you have no problem downloading a show that was shown on broadcast, then it shouldn't matter if it's coming out on DVD in the future: you could check the DVD out from the library. You're simply reducing scarcity for everyone and putting less strain on library resources by downloading the show yourself.
posted by mullingitover at 3:04 PM on July 16, 2009

Top Gear is on the BBC, a channel made in the public interest paid for by licence fee payments - there are no adverts.

It is, however, "sold" to BBC America (a joint venture between BBC Worldwide and Discovery) and shown with adverts. Then the moral issue becomes complicated by the fact that you can't subscribe to BBC America without paying for 146 channels you don't want. Nor can you pay for a TV licence that would give you access to the BBC iPlayer.

The UKNova policy is "if it's out on DVD or coming out soon, no go". That's frankly more of an offering to the gods than a legal defence, but there you go: there's still a lot of material that won't ever be broadcast abroad or released on DVD.

It's fair to say that the proliferation of unauthorised digital downloads has encouraged shorter lead times between broadcast and DVD release (the Torchwood five-parter on the Monday after broadcast, both in the UK and US) and in the lag time between US and UK broadcast for programmes originating in the other country. This is a good thing, and deserves to be supported with your money.

But just as Spotify and other streaming services have apparently cut into unauthorised audio downloads, my guess is that near-time on-demand access (Netflix, Amazon, Hulu, iPlayer) will cut into the accumulation of vast libraries of downloaded video. And they'll either charge or run ads, and that won't be a problem, because it will be less hassle, feel fair, and the underlying issue surrounding media downloads has always been the desire for convenience at a fair price.
posted by holgate at 3:20 PM on July 16, 2009

Leave it on your TIVO as long as you like before you watch the program, if you like, though.

I believe that's illegal in the UK if you keep it over 30 days.
posted by wackybrit at 3:25 PM on July 16, 2009

JauntyFedora: I base very few to none of my buying decisions off of commercials, therefore I feel justified in not watching them.

Most people seem to claim that commercials do not affect what they buy. The majority of the people making that claim are either lying or unconscious of the effect commercials have. Advertisers are not paying money to have rational input to your purchasing decision, they are paying money so that their brand, image, and product will be exposed to you.

Regarding the moral question, my personal solution to the dilemma is the Gordian one. TV is a tawdry luxury; it is feasible for me to do without it and skip the moral and financial questions entirely, and the low quality of most TV makes this even less of an issue.
posted by idiopath at 3:36 PM on July 16, 2009

Basic guide in any moral question is, would you do this if the potential offendee were a best friend you would hate to disappoint or lose.

Myself, I like to think that a few coins are tossed to the originators of the work. If that means waiting for the DVD set, well, you've waited this long, what's the hurry?
posted by IndigoJones at 4:20 PM on July 16, 2009

The companies that are making money from you paying for the TV shows would help addict you to crack, send you to war, or end your life if they thought that it would increase their profit margins. They would be happiest if you sat there, in front of your TV, 100% of the time, taking short breaks only to spend your remaining money on the products they advertise.

Download the shows. Download the box sets. If you happen to find yourself walking behind the CEO of the network, hit him in the back of the head, take what's in his wallet, and spend it on plastic crap from China that you will never use.
posted by bingo at 7:21 PM on July 16, 2009

There is nothing morally wrong with downloading or watching any sort of media on your computer. You are mistaken about the DVD boxset issue - that is also completely halal to download and view, and distribute to your friends.

Peace be with you, son.
posted by Meatbomb at 7:47 PM on July 16, 2009

Currently our copyright laws are wildly divergent from actual practice of sharing files, music, video, downloads, whatever, out in the real world in a large number of ways--so far divergent that you could easily call the situation, and our current copyright and "intellectual property" regime completely disfunctional.

So this doesn't help you answer your question about whether or not to download a particularly TV program or whatever right now, but the real answer in the long term is this: to do what you reasonably can to encourage society/lawmakers/even industry to get copyright law and practice to join the 21st Century.

It's perfectly possible to have a situation where content makers and artists are decently compensated for what they produce, while ordinary people can download/listen to/view what they like either for free or at a very reasonable price.

We're not there yet, but when we are you won't have to find yourself asking such a silly question.

(Not that you're silly for asking it--it's silly that the current state of our society means you *need* to ask it.)
posted by flug at 7:48 PM on July 16, 2009

I am not a 'qualified' lawyer. I am an academic lawyer.

*rubs hands with glee*
I wrote my dissertation on this very subject (got a starred first too I might boast).

Before I get on to the moral issues (which to me underpin changes in the law in this area), let's look at the legal issues:

The issues with illegal copying of tv shows (regardless of method, but lets face it, these days few people go to the effort of copying actual dvds, they will find what they want on bittorrent or similar) which bother most people are essentially the same issues which affected video-taping back in the day. In the Betamax case, the court ruled that it was fine to use the video machine to 'time-shift', but to create your own video library was probably not ok (I think. It's a while since I've read the judgment. I can't recall that they actually out and out said video library making was definitely NOT ok.) Based on this, there are arguments that it should be perfectly ok to make digital copies of shows that are televised in your home country on the premise that you will watch it then delete it. However the Grokster case indicates that this might not be the case.

My opinion is that

1) if the show is available in your home country and has already been televised, you should be perfectly in your rights to obtain a copy online, as long as you are not intending to keep that copy. Legal point to be argued - this way you do not watch the commercials, and it is this that pay for the show.

2) if the show is available in your home country but this episode is yet to be televised, you are essentially time-shifting in advance. Whilst more legally dubious, to me people doing this shows the industry that there are people who want to be able to watch this show earlier than their own country is allowing them to (assuming that it is a US import to UK or vice versa etc). It may encourage companies to work together more closely. Result? morally ok.

3) you are obtaining a show that is not available in your home country and planning to delete after watching. Like 2, for me this is morally ok. It shows the companies that there is an audience and it is in their interests to make this show available. Of course if the show is available in DVD, which they sometimes are, this makes it more morally questionable.

4) you are downloading any of the above and intending to keep it. Legally not ok, morally dubious. Less morally dubious if the show is not available to buy commercially - I accompany many IP academic lawyers who argue for an extension for fair-use allowing any copying of material that is not public domain, yet is not available to buy.

I don't really get why you would think that downloading a tv box set is wronger than a tv show. To me it's irrelevant whether something is available on dvd, assuming that show is or maybe still televised in the future. Would you think it wrong to videotape or use your PVR to tape that same show when it is televised because it is on DVD? No, that would be insane, no one would own PVRs or VCRs! (not that they own the latter anymore, but you get my point).

At the end of the day, if you want to watch a show, you are going to find a way to watch it. Do so then delete. Next time it is on tv tape it, or get it on DVD when it comes out if you want a copy for posterity.
posted by nunoidia at 11:44 PM on July 16, 2009

idiopath: Most people seem to claim that commercials do not affect what they buy. The majority of the people making that claim are either lying or unconscious of the effect commercials have. Advertisers are not paying money to have rational input to your purchasing decision, they are paying money so that their brand, image, and product will be exposed to you.

I understand your point. However, I have to distinguish between being affected by TV commercials and having them effect my purchases. Most of the advertisements on TV do not apply to my demographic. I watch Jeopardy and am subjected to Sensodyne and Centrum Silver commercials. I see game ads for consoles I don't own, Michael Bay movies I refuse to watch. They way I see it, the less time I waste watching these commercials, the more time the advertisers have to affect me in more effective ways, like the gadget/gaming/movie blogs I read.

Also, now that product placement continues to climb, I'm getting enough advertising during my shows thank you very much.
posted by JauntyFedora at 12:55 AM on July 17, 2009

Nunoidia: "Legal point to be argued - this way you do not watch the commercials, and it is this that pay for the show."

That is a pretty big caveat. And stating that you're a lawyer is a little dodgy given that the rest of your email contains your moral judgements rather than legal opinions. (As a practicing lawyer I'm sensitive to this.)

Bingo: You're not just depriving the evil studios and networks of revenues. You're depriving the creators and writers and actors that make the content you want to watch. And unlike musicians, TV writers can't go on tour. The show is all they have to sell.

For networks, ratings for shows take into account (legal) online viewing (which is often free) at the networks' websites; they also take into account DVR-based viewing. These ratings determine whether a show will be continued or cancelled (putting those creators out of work), and they determine ad revenue, which translates into the salaries and residuals paid to creators and performers and crew. Are the studios screwing these people? Maybe. If they are, does that mean you should too?
posted by bagadonuts at 9:30 AM on July 17, 2009

Nunoidia:

It's not clear to me that time-shifting is as elastic a concept as you present it. "Time-shifting in advance", if accepted as moral and legal, would seem to authorize, e.g., downloading a pirated movie even before it was released, on the theory that "one day this will be available on HBO, to which I am a subscriber." I don't think any court in the world would accept that.

And the entire idea of time-shifting goes right out the window if you're not recording/downloading the commercials as well as the TV program. (No one should act on my opinions here, by the way, which are NOT legal advice. I'm not addressing the original question, but merely challenging Nunoidia's points.) The Betamax Case opinion centered on the fact that the VCR had non-infringing uses, and people who WANTED to use the VCR legally should not be prevented from doing so merely because some people would use it illegally.

If you download a TV show without the commercials, you DO NOT HAVE THE OPTION of watching the commercials. I.e., there are no non-infringing uses of a downloaded TV show that doesn't have the commercials. Unlike Betamax, the question here is NOT the legality of the technology. It's about the legality and morality of using them to download a particular show. Therefore, the infringing vs. non-infringing uses issue doesn't exist here. There is only one kind of use -- the infringing use. The Betamax holding is not on point.
posted by bagadonuts at 9:53 AM on July 17, 2009

I accompany many IP academic lawyers who argue for an extension for fair-use allowing any copying of material that is not public domain, yet is not available to buy.

WHat if the producer has stated intention to sell DVDs, but years drag on and it doesn't happen? Does the producer have to name a specific date for his rights to kick in? How many of these deadlines can he miss?

What of material where parts are altered? For example, the show Frank's Place is not on DVD because the fees for the background music are too high. The producer intends to release it with different cheaper music in due course. It can be had by other means with the original music. Is the end user constrained to the official (altered from original) version if it comes out, or would Fair Use as defined above allow end user to cut out the copyright owner and go to the original bootlegged version?

(That said, I agree with pretty much everything you said.)
posted by IndigoJones at 9:18 AM on July 19, 2009