Yeah, I know you were being tongue-in-cheek (and were I not falling asleep at the keyboard I would have clarified that), but I really think that if a cop showed up at your door and asked to see your files, you’d be worried. You may think you have a good argument to make, but I think you’d be worried. If I’m wrong about that, then sorry for mis-characterizing you.

It’s pretty obvious we’re not going to come to an agreement on this, no matter how much each of us argues. I believe I’m pretty well backed up with my view; you obviously believe you’ve got a lock on the truth. It’s doubtful we’re going to sway each other.

It sounds like your basic point is “once it’s out there, it’s out there, and we can pass it around as much as we want”. And you back that up with Betamax and the Fair Use finding in that case.

My basic point is “personal use is personal use. You get to use it, not distribute it.” Stated that way, technically, maybe I’m not arguing that downloading a show is illegal, but I am arguing that uploading a show is illegal, and given how p2p sharing works, that distinction is irrelevant.

After all this, here’s one more thought (not an argument for anything, just an observation): speeding is also illegal, and we all know how well I follow the speed limits.

In the next breath, you recognize that if someone with some zeal about this took a look at your computer and realized how many downloads of copyrighted material you’d performed, you’d be worried about getting into legal trouble, which indicates you at least recognize the possibility that something might be untoward about it.
Please realize that my comments about turning me in was done tongue-in-cheek.

Yeah, I already turned you in. I’m surprised the cops haven’t confiscated your computer already. Do me a favor… don’t tell them my IP address when they stop by.

RE: JMS - the screwing is definitely part of his argument, but I think his other arguments are valid as well. I’ll grant you that he doesn’t present any specific legal precedent. It’s a more anecdotal argument, and in my opinion, he makes a decent case. You obviously disagree.

RE: Cory - okay, I’ll grant it’s relevant to that portion of JMS’ argument. Still not relevant to the original question though.

RE: Alice/Bob/Charlie & “Where’s the illegality?” - There are multiple ways to attack this, really. One is the transferability of “fair use”, which you mention (and I don’t think I buy that Alice has her own fair use rights to content provided to her by someone other than the original distributor). (Btw, there’s also the whole argument that “fair use” is a defense, not a right.) There’s also the fact that it’s not just Charlie, Bob, and Alice… Charlie is acting as the TV Pimp for 1000’s of Alice’s simultaneously. He’s got his own office and is facilitating transactions left and right - i.e., he’s a distributor. I think you grant that. Where we differ is, does he have the right to provide a means to copy one person’s “fair use” copy to another person. While in a perfect world I would say “Yes”, in our current world I would have to say “No”. And to be honest, it confuses me that you are saying yes. Here’s why:
In one breath you are saying it’s not remotely illegal.
In the next breath, you recognize that if someone with some zeal about this took a look at your computer and realized how many downloads of copyrighted material you’d performed, you’d be worried about getting into legal trouble, which indicates you at least recognize the possibility that something might be untoward about it.

(holy crap, it’s 1:30 in the morning and I’m still typing this. I had some more to say about Grokster, and the nature of the distribution argument, and the arrival of the big corps [I mostly agree with you there], but honestly I’m too tired and my brain’s a little fuzzy. Maybe I’ll come back to it tomorrow.)

– as to the shindig: I think I will but not the family. My F-I-L birthday was set for the exact same time about 2 hours distant, so they’re going there. If I can get past the guilt, I’ll be at Mike’s.

… we need to cut to the chase. Are you going turn me? I gotta know. So far I don’t think anyone really knows what I’m up to.

2. I agree JMS can come off as a little whiny (or maybe defensive) but I can’t fault his arguments. I think you and I read the same thing and had different take aways. Imo, JMS is making the argument that in the current business environment content owners are getting screwed on residuals (perhaps proven, perhaps not). He claims, but does not argue, that the download activity to blame for said screwing represents illegal activity by someone (consumers?). The topic you and I are discussing seeks to answer the question: Does downloading a tv show from a torrent sharing site such as eztv constitute illegal behavior? See post 3 (you) and my reply/question in post 4.

3. In Cory’s case, he’s made what I consider a great business choice, and has the data to back that up. Given that the content owners in question here have not made that same choice, however, it’s not relevant.
It is relevant as a counter-point to JMS and his attitude of (paraphrasing) ‘I’m not getting my fair share of the pie’ point of view. He is NOT being excluded from ‘his share’ by the activity of broadcast tv downloads. The same applies to the content owners. Cory’s situation is offered as an antecedent to JMS rantings about Internet copying/sharing and how it is harming his ability to make a living.

Given:
4. I went and read the Betamax wikipedia case. Makes exactly the argument I expected: that a personal copy of a broadcast show, for personal use, is fair use. No argument from me.
How do you get to “I would call eztv p2p downloads illegal”? I know you try to make this distribution argument, but I don’t see how that applies. Downloading from eztv is essentially this scenario:
1) Alice contacts Bob seeking to make a personal fair use copy of the Show.
2) Bob introduces Alice to Charlie. Charlie has his own personal fair use copy of the Show
3) Alice creates a copy from Charlie’s copy.

Where and what is the illegality?

Re:Grokster
One of the main arguments that sunk Grokster was the majority of file sharing on their network represented copyright infringement. Grokster was unable to establish their network as being, on the whole, a carrier of mostly non-copyright infringing files. It also didn’t help that Grokster published the software used to access their network. In the end the Supreme court didn’t rule that what Grokster did was illegal. Only that Grokster could be sued for infringement. At that point it was a question of who had the deeper pockets to pay the lawyers and thus Grokster settled MGM and shut down.

So all that backs up what I’ve said already:
Copying directly from broadcast for personal use = Ok
The files available on Grokster did not represent fair use copies of the content. The files on Grokster were much closer to Amit’s hypothetical of sharing tv shows taken, not from a broadcast, but ripped from an authorized dvd copy.

Distributing that copy = not Ok
Again we come back to this concept of distribution of copies. No one has multiple copies that they are distributing ala your VCR tape analogy.

I mean, sure copies are being made, but if the use of these copies falls under fair use, then what is the problem? Using the scenario outlined earlier, do you thing I’m trying to argue Charlie’s’ fair use rights are transferable to Alice when she makes her copy? No, Alice has her own fair use rights to the content and what does it matter who made the first copy? The answer … it doesn’t matter one whit.

——-
Anyway it’s been fun. What’s funny is I never actually clicked through to Amit’s post until well into this discussion. You guys seem in agreement. I suppose the larger counter-point I would like to make is that the coming of corporate solutions such as Hulu, MSN, etc., is not the arrival, at last, of free on line tv sources. That’s been going on for a while. I would agree that it is nice to see the big corporations entering the space. Hopefully they understand that ‘Don’t Tread On Me’ is good policy. They need to compete with the value of their service and not the lawyers. But while they figure that stuff out. Please don’t advocate the popular alternative as illegal. These alternatives are on your side and care about you just as much the big corporations.
—
Will you be at the old guys shindig this weekend?

Dave

1. Dave, just want to point out that Amit came and made a post a while ago that I didn’t notice in moderation. You might want to scroll up to check it out (post 9). Or not. Whatever. (Hey, Amit! Thanks for stopping by!)

2. I agree JMS can come off as a little whiny (or maybe defensive) but I can’t fault his arguments.

3. In Cory’s case, he’s made what I consider a great business choice, and has the data to back that up. Given that the content owners in question here have not made that same choice, however, it’s not relevant.

4. I went and read the Betamax wikipedia case. Makes exactly the argument I expected: that a personal copy of a broadcast show, for personal use, is fair use. No argument from me.

5. I went on and read the Grokster case mentioned at the bottom of the article: http://en.wikipedia.org/wiki/MGM_Studios%2C_Inc._v._Grokster%2C_Ltd.
As a result of losing that case (they were found liable for facilitating the infringement of copyright) Grokster posted this notice that sums it up well:

“The United States Supreme Court unanimously confirmed that using this service to trade copyrighted material is illegal. Copying copyrighted motion picture and music files using unauthorized peer-to-peer services is illegal and is prosecuted by copyright owners.

So all that backs up what I’ve said already:
Copying directly from broadcast for personal use = Ok
Distributing that copy = not Ok

I would encourage you to read the copyright articles of author Cory Doctorow. Cory releases the complete text for each of his novels under the Creative Commons license. He has documented how making his novels available for free online has led to increased book sales. Other authors also back up this claim (see Ryan Kelly and Eric Flynt).
This is article is a great start
http://www.locusmag.com/2006/Issues/09DoctorowCommentary.html

Of course wikipedia can be a great resource:
http://en.wikipedia.org/wiki/Fair_use
http://en.wikipedia.org/wiki/Sony_Corp._v._Universal_City_Studios

Let’s try this blockquote thing again

We are a justice sandwich, no toppings necessary! Living rooms of America, do you catch my drift? Do… you… dig?

Dave

Here’s J. Michael Straczynski’s take on the whole p2p thing. As a content owner/provider, I’d say he’s pretty credible and makes a good argument on multiple levels.

I’ll get back to you on Fair Use later.

FYI - Hulu (now distributed through Veoh, MSN Video, and FanCast) includes both NBC (and affilates) and FOX (and affiliates).

Coming back to downloading torrents of tv shows, I haven’t seen a case yet against people downloading TV shows, but I guarantee you that there is a team of lawyers trying to figure out a way to go after this area. For example:

Is it illegal if the show you are downloading was ripped from a DVD as opposed to just recorded off TV? So if this is and regular TV recordings aren’t, what’s the line? Quality? Source?

Is it illegal to download a torrent of sports broadcast (you know where they say you can’t re-broadcast without expressed written permission)? This one depends on your definition of re-broadcasting. Is making the file available online the same as “re-broadcasting”?

I don’t think you’ll be able to base this argument off an analogy to music distribution.