Is Downloading TV Fair Use?

March 4, 2006 6:48 AM

Is it legal to download episodes of broadcast tv?

I am under the impression that time- and format-shifting are fair use. Are they in this case?

posted by MonkeyMeat to law & government (37 comments total)

This is a good question...is this the same for music? Can you time shift music from the radio to your iPod? Would you have to delete it after you listen to it for it to be fair use?
posted by brokekid at 7:13 AM on March 4, 2006

This is not a question with an easy answer. The MPAA and such would argue that it isn't fair use. The EFF and such would argue that it is.
posted by Justinian at 7:30 AM on March 4, 2006

I don't think it is. That's not stopping me from doing it, though.
posted by graventy at 7:38 AM on March 4, 2006

This news wire story was everywhere this week. It's about UK residents downloading Lost 9 months before it airs over there, and the issues of considering TV "free" if you don't have to pay for it (short answer: it's actually supported by advertising, which is removed on show trading).
posted by mathowie at 7:39 AM on March 4, 2006

According to the RIAA, you can't even legally rip your CDs to your iPod or make backup copies (Must not rant... answer the question... must not rant... aarrgghh...), so the standard here should, I suppose, be whether the courts could currently be expected to side against you. According to that standard, my understanding is that, in the US and most other places, recording from broadcast and time/format-shifting of television are okay for now (though the MPAA/RIAA are spending millions to "fix" that), but downloading (distribution) is not. Same for music/radio.
posted by musicinmybrain at 7:49 AM on March 4, 2006

I suppose it depends on the country, MonkeyMeat. In Canada this was legal until a few years ago when the law was changed that TV cannot be rebroadcasted without permission digitally (just in analog, now).

I am not sure if the US has the same law, if that's the question. If it does not, I would expect basic copyright law that lets you (under fair use) make personal copies would mean that you are not allowed to download such TV broadcasts, if they are copyrighted. But you WOULD be allowed to make a digital copy of one if that what you prefer, assuming you received the original signal (ie: TiVO it).
posted by shepd at 7:51 AM on March 4, 2006

Keep in mind that popular gnutella and bittorrent clients will automagically begin to share partially downloaded files.
posted by stavrogin at 8:01 AM on March 4, 2006

According to the RIAA, you can't even legally rip your CDs to your iPod or make backup copies

That EFF article is bullshit and an embarrassment to their organization. They've taken a out of context snippet of legal argument from a particular case and are claiming it represents the general opinion of the RIAA.
posted by cillit bang at 8:02 AM on March 4, 2006

Why would a legal document filed by a company not be representative of the state of its opinions?
posted by odinsdream at 8:04 AM on March 4, 2006

i'm not a lawyer, but i work with entertainment and television companies (try not to throw anything at me, ok?) and I can say with a definite degree of confidence that it's not legal in the US. Content owners have a right to control what they create - and if the content is being distributed through unauthorized channels (such as P2P) - especially if they're not being compensated for the distribution - then they have a right to stop it. Now, there is the pesky question of fair use question which is definitely a gray area area... but I'm sure any reasonable court would hold that it's still illegal. Let's put it this way: if it's illegal in the US to download a song that you could hear for free on broadcast raido (which it is), then it's illegal to download television you can get for free over broadcast television. Not saying I agree with it... and I'm not a lawyer... so take my comments with a grain of salt.
posted by tundro at 8:08 AM on March 4, 2006

I'm going to guess no, but I have DVR's so the issue rarely comes up.

Off topic, but it drives me nuts that most shows I've downloaded have the closing credits cut out. Someone will probably argue removing credits is fair use though.
posted by gaelenh at 8:11 AM on March 4, 2006

Why would a legal document filed by a company not be representative of the state of its opinions?

I think the number one reason is that the quoted text doesn't support the position the EFF claims it does. I've only had a flick through the documents, but it looks like Grokster were trying to argue that time-shifting/platform-shifting in one context being legal means it is legal in all context. The RIAA then paraphrased a government document (a legal opinion from The Register Of Copyrights) saying this was not true, and that fair use has to be decided on a case by case basis.

Point being, the RIAA never claims they don't think copying music to an iPod is fair use, or even comes close to saying so.
posted by cillit bang at 8:27 AM on March 4, 2006

It is perfectly legal to download TV episodes.

It is also perfectly legal to download movies, MP3's, and even software!

WHAT YOU SAY?

It's not the downloading that's illegal, it's the sharing that's illegal, when you are not the copyright holder. If NBC wants to put all their old Cosby Show episodes online for you to download, you're breaking no laws. If Joe Shmoe wants to do it, it's illegal. If you want to do it, it's also illegal.
posted by Civil_Disobedient at 8:39 AM on March 4, 2006

(short answer: it's actually supported by advertising, which is removed on show trading)

Said advertising having already paid the costs, and thus its absence not really counting for a lot in the financial scheme of things.
posted by five fresh fish at 9:16 AM on March 4, 2006

Sorry if this isn't answering the quesiton directly, but I just wanted to correct tundro's statement, "content owners have a right to control what they create". This is definitely not broadly true. Copyright grants authors control over a limited set of operations that can be performed on the work (namely, copying). It certainly doesn't grant control over everything that one can do with a work.

That said, I seem to recall that some of the early arguments about MP3-trading regarded their high-fidelity nature. Trading an MP3 wasn't equivalent to time-shifting a radio broadcast because the MP3 is much higher quality than the radio broadcast. That argument may have been bullshit, though.
posted by breath at 9:28 AM on March 4, 2006

Download from where?

The most legal would be to download from the iTunes store or some other licensed entity.

The least legal would probably some p2p server where you are also sending compies out to other people. This is what content distributors are most worried about.

Think about it this way. If you bought an illegally copied book, you wouldn't be breaking the law, but if you illegally copied a book and sold it, you'd be breaking the law. Just taking something that's available isn't really illegal. The large IP organizations are doing their best to confuse and scare people, however.

But keep in mind if you use bittorent, you're also uploading that same file to other users, so you could be somewhat liable.
posted by delmoi at 10:04 AM on March 4, 2006

i'm not a lawyer, but i work with entertainment and television companies (try not to throw anything at me, ok?) and I can say with a definite degree of confidence that it's not legal in the US. Content owners have a right to control what they create

No, you're not a lawyer. You're also wrong. Copyright means the right to dictate who can distribute copies other people, and nothing else.
posted by delmoi at 10:06 AM on March 4, 2006

Said advertising having already paid the costs, and thus its absence not really counting for a lot in the financial scheme of things.

That's totally irrelevant from a legal perspective.
posted by delmoi at 10:08 AM on March 4, 2006

The only reasonable answer to this question is "we don't know". To my knowledge, this issue has never been adjudicated in any court of law, so the most you're going to get is a bunch of opinions that have no legal basis.

We're in the same situation right now for TV shows that we were in in the late 90's with MP3s - until the matter goes before the courts, we don't really know where the lines of "fair use" are drawn.
posted by gwenzel at 10:25 AM on March 4, 2006

It's important to keep in mind that "fair use" doesn't just mean "it seems fair to me" but is a specific legal doctrine that provides a defense when excerpts of copyrighted material are used without permission for specific purposes, i.e., education, critique, commentary, or satire. That means that making a copy of an entire TV show is probably not "fair use" under any circumstances and especially not if you're downloading it just to watch and enjoy it, as that fails the purpose requirements.

Even if it was "fair use," that's a defense if you're sued, but you can still be sued; only a court can determine if a particular use is truly "fair use" or not. The law is not cut-and-dried but provides guidelines for courts to use in making decisions as to whether a particular use counts as "fair use."

The right to make copies for purposes of time-shifting is the result of the Betamax decision (not law) and the right to make copies to change the format is the result of the Home Recording Act (an addendum to copyright law). Neither have anything to do with "fair use."
posted by kindall at 10:31 AM on March 4, 2006

It would make sense to me that it is legal to time and format shift works that you yourself have recorded for personal use. I doubt it would be legal to time/format shift someones work distributed by an authorized third party.

That being said, I think the proper description of the legality of all this is "murky".
posted by blue_beetle at 11:31 AM on March 4, 2006

Downloading TV shows fails almost all the tests of fair use.

1. You're downloading the episode in whole, not any particular part of it.
2. The work is a commercial entity that is still "in print" and making money for its creators.
3. By downloading instead of watching it on TV you do not see the ads and therefore are depriving the creators of money (specifically, that advertisers are getting fewer impressions and therefore will be likely to pay the networks less to run the same ad in the future.)
4. You're not adding any aggregate value by using them for academic or literary purposes. You're just watching them.

Therefore I can't see any way that you could possibly stretch this into fair use.

The betamax decision did make it legal to tape broadcasts off the air for your own personal use. But that is not relevant to this situation because a) you're not doing the recording yourself b) the betamax case said nothing about distributing those personal copies, which is what's happening here.

Morally, it may be right. Legally, I don't see any way that this is legal.
posted by Rhomboid at 11:54 AM on March 4, 2006

What if the commercials are left in? If so, that's a lot closer to plain old time shifting...
posted by ph00dz at 12:17 PM on March 4, 2006

Well for one thing, no self respecting release group would do that. If they did, people would get fed up with them and download the caps by some other group who did edit out the commercials. Or if no other group existed, somebody would remove the commercials and then redistribute the file. Commercials just make the file larger to download, not to mention being an annoyance, so there is just zero motivation for any group to leave them in, and quite a lot of motivation to edit them out.

Assuming somehow that they were left in, whose commercials are you going to see? TV is a mix of regional and national advertising. Are you going to see the local commercials of that particular capper's station? How is that satisfactory to all the other markets out there?

And in the face of the advertisers, none of this matters since those impressions won't be counted. All they see are the reports that the neilson people present them. If a significant portion of people started downloading shows instead of watching them on the air, then the reported viewership would shrink, and those advertisers would pay less to run the ads. To paraphrase Raymond Chen, any solution that completely falls apart when you play out the "what if everyone did this" scenario can't be very satisfactory.
posted by Rhomboid at 1:04 PM on March 4, 2006

To paraphrase Raymond Chen, any solution that completely falls apart when you play out the "what if everyone did this" scenario can't be very satisfactory.

Perhaps it's simply time for TV to die. It's entirely reasonable to assert that the advertising model TV is currently built on will no longer be tenable when the target market has high-speed internet access and the ability to download any episode mere hours after it airs.

In which case, I'd happily do my part to kill TV by downloading every Battlestar Galactica and Lost immediately after it airs - because there are no commercials, and they're in wide-screen format unavailable to me through the local cable company.

Let the content producers figure out how to make money in this new marketplace.
posted by odinsdream at 1:27 PM on March 4, 2006

Thanks, all. I feel my question remains unanswered, but not for lack of information. I did learn that there is a difference between "fair use" and plain old noninfringing use, which is what I thought that term referred to.

I asked because my ISP notified me that a content-producing company contacted them with information that my IP address was being used to access/distribute content that infringed on their copyrights. The content in question (identified only by filename) was an episode of a TV series shown on a public broadcast network that is not currently available on DVD or iTunes. If it were a commercially available movie or song, I would understand, but it seemed strange to me that content that is distributed freely to anyone with the technology to retrieve it from the either would be subject to such restriction.

In some cases, the technology used to snatch the content from the airwaves is an old coat hanger wrapped in tinfoil plugged into an old b&w set, in others it's a TV tuner card that displays the content in a window on someone's PC in glorious 24-bit color, in some cases... and so on. What's different about a retrieval mechanism that employs digital video encoding and the internet? I could see the issue being that someone else recording the program, encoding it, and transmitting it over the internet counts as redistribution, but where is that line drawn? What about TVs in sports bars? What about in apartment buildings, where the landlord installs an antenna and the tenants plug into it with their own TV sets? Are proprietors of sports bars landlords of apartment buildings redistributing the content?

Whether or not that activity deprives the copyright holder of financial compensation is a separate issue, but one worth considering. When you watch a TV program, are you told that your access to the content is contingent upon you sitting through the commercials? Are you depriving the network of revenue if during a commercial you get up to use the bathroom, fix a snack, etc.? Are you paying the network back in a way if you like the content and talk/blog/etc. about it to potential new viewers who only sit down in front of the TV with empty bladders and full stomachs?

I think it's important to respect the letter of the law on copyrights, but in the face of technological change, the nature of that law seems increasingly arbitrary. Where once it seemed that the burden was on content-producers to earn the public's attention, which could then be monetized through advertising, it now seems that the burden is on the public to pay for access to entertainment by paying attention at the times and via the means dictated by the producers. That seems backward to me.
posted by MonkeyMeat at 3:52 PM on March 4, 2006

it seemed strange to me that content that is distributed freely to anyone with the technology to retrieve it from the either would be subject to such restriction

Are you arguing that broadcasting something for free forfeits copyright and puts it in the public domain?
posted by cillit bang at 4:05 PM on March 4, 2006

I don't think broadcasting puts the copyright in the public domain- I don't think that's an authorization for derivative works, for example. Broadcasting does indiscriminately grant the public access to view the content, though- it seems strange to me to then get all picky about how (technologically speaking) and when the public redeems that admission ticket.
posted by MonkeyMeat at 5:13 PM on March 4, 2006

Copyright means the right to dictate who can distribute copies other people, and nothing else.

The distribution right is only one of the exclusive rights of a copyright owner.
posted by anathema at 8:17 PM on March 4, 2006

It's important to keep in mind that "fair use" doesn't just mean "it seems fair to me" but is a specific legal doctrine that provides a defense when excerpts of copyrighted material are used without permission for specific purposes, i.e., education, critique, commentary, or satire

It is certainly a legal doctrine that has suggested statutory guidelines that are intrepreted and applied by courts. It applies not only "excerpts," as it can equally apply to works copied wholesale.

The right to make copies for purposes of time-shifting is the result of the Betamax decision (not law) and the right to make copies to change the format is the result of the Home Recording Act (an addendum to copyright law). Neither have anything to do with "fair use."

The Betamax decision does in fact have to do with fair use, although the interpretation of the holding has been subject to dispute. The Audio Home Recording Act was crippled legislation, that resulted in the law having exremely limited application.
posted by anathema at 8:26 PM on March 4, 2006

Broadcasting in no way puts the copyright into the public domain.
posted by anathema at 8:30 PM on March 4, 2006

Broadcasting does indiscriminately grant the public access to view the content, though- it seems strange to me to then get all picky about how (technologically speaking) and when the public redeems that admission ticket.

Well the thing that got this question asked was about people in the UK, who are about halfway through season one of LOST, skipping ahead.

So your reference to "the audience" is a problem for the broadcaster in the UK. If you're talking about "the audience" in the USA, where it's gone to air already, yes, you have a point. But someone in the UK is trying to sell advertising space on these new, unseen episodes of LOST, and if they're not 'new' and they're not 'unseen' then they're going to lose money.
posted by AmbroseChapel at 9:58 PM on March 4, 2006

I asked because my ISP notified me that a content-producing company contacted them with information that my IP address was being used to access/distribute content that infringed on their copyrights.

So is your question reallly about downloading and sharing episodes of broadcast television? In that case, I think the answers would be different than if you are just using the example "I downloaded an episode of LOST that was not available for purchase and watched it, am I in trouble?" I definitely sympathize with your situation, but from a content provider's standpoint, there is a huge difference between allowing people to watch broadcast or cable television in a bar, or enable people to get better reception in their apartment, and time and format-shifting and redistributing content. This is sort of the crux of the current filesharing fight nowadays, isn't it? As delmoi and Civil_Disobedient have stated, your question doesn't seem to be about downloading, your question is about sharing. The rule son downloading are murkier than the rules about sharing, though few have been thoroughly tested in a US counrt of law.
posted by jessamyn at 6:37 AM on March 5, 2006

Under BMG v. Gonzalez, downloading, at least in the Seventh Circuit (U.S.), is infringment. The decision was handed down on December 9, 2005 by a panel of the 7th Cir. Court of Appeals.
posted by anathema at 8:23 AM on March 5, 2006

This is sort of the crux of the current filesharing fight nowadays, isn't it?

I guess that's also the crux of my question, then, so I'll refine it to the following points:

• How are "distribution" and "redistribution" legally defined?
• How do the rights to and restrictions upon distribution apply to content which is distributed by the copyright holder via public broadcast?
• What rights does the public have to the content on the basis that it was broadcast indiscriminately via a public medium?

I am interested in discussing but not specifically asking about content distributed on fee-based cable networks or cases where commercials are spliced out- I think those cases are more clear-cut.
posted by MonkeyMeat at 9:51 AM on March 5, 2006

Under BMG v. Gonzalez, downloading, at least in the Seventh Circuit (U.S.), is infringement.
posted by anathema at 9:56 AM on March 5, 2006

The following is based on U.S. law. Generally, there is no distinction between "distribution" and "redistribution." Prof. Patry discusses the distribution right with regard to DPDs here.

One of the exclusive rights of a copyright owner under Section 106(3) of the Copyright Act is the right 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[.]

Not sure if I understand your second question. Broadcast is different than distribution. Generally, copyright law defines distribution as distribution of physical copies or phonorecords (which may include digital copies (Digital Phonorecord Delivery)). Broadcast is distinguished. Generally, a "broadcast" does not involve physical copies or phonorecords. A "broadcast" of a musical work is not considered publication for copyright purposes. These definitions have great implications as far as licensing and royalty collection goes.

Also, if you mean "public" as in PBS or other public broadcasting companies, the rules change. There are very limited exceptions with regard to the synchronizing and performance of sound recordings and musical works by public broadcasting companies. The details are too technical to get into here. But, the exceptions only apply to broadcasting. If PBS wanted to release a DVD of a broadcasted show, they would not be covered by the exceptions. Regardless, even if you mean "public broadcast" to generally mean broadcast by a traditional network or cable company, the broadcast of copyrighted material in no way relinquishes any of the exclusive rights of the copyright owner.
posted by anathema at 10:22 AM on March 5, 2006