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Originally Posted by kane
I'll just butt in for a second.
Even if most people are using torrents to download TV shows (and I have never really complained about that unless the show is something that is on HBO or Showtime or some non basic cable/TV channel) for many it is still not like a VCR.
A VCR records what TV show you set it to record ( or for that reason so does a DVR or Tivo). If that show was never broadcast in your area you couldn't record it. I know a lot of torrent traffic is people outside the US downloading US TV shows. Many countries in the world get some US shows, but not all of them. So say for example that someone in France downloads an episode (or full season) of the show My Name is Earl. Now anyone with a TV and an antenna in the US can watch that show, but if the show is not aired in France then there is no way that person could have ever watched that show so in effect if they had a VCR they could not record the show because it was never on the air. I don't know if this show does or does not air in France, I'm just using it as an example.
So if the show never aired in an area and that person downloads it then they could not be timeshifting the show because it was never available to them in the first place.
The same can be said for some people in the US. I read that about 1 in 10 households in the US don't have cable (or satellite) and just use a regular TV antenna. More and more people are turning away from cable and to the internet as their main source of entertainment. So if these people only have internet access and not cable TV and they download a show like The Shield or In Plain Sight that are cable only shows they too are not using the torrents like a VCR because they never had access to that content in the first place.
Anyway, just a thought.
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as to the arguement for US citizens i will cede that point, however it is irrelevant because there is no way the pirate bay can tell the difference between the US customers who are using it like a VCR (90% based on your quoted stat) and the 10% who are not. Like the VCR which can be used for both legitimate uses (timeshifting/home viewing) and illegal (bootlegging videos) the VCR seller (walmart) is not legally responsible for the true infringers activities.
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"the Betamax could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-air recording."
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It is the responsiblity of the copyright holder to find and go after those that are actually commiting the crime.
As to the arguement about foreign countries where the program is not sold at all (use dr who confidential which only airs in britian), no sale is possible to those people, which means no sale is lost. And the 1 download != 1 lost sale ruling means that it meets 4th condition of fair use.
Which was the "Access shifting" fair use that the Grokster people were trying to establish when the supreme court ruled that since each transaction had one infringing (sharing)"in and of itself" they did not need to consider the fair use right at all However since seeding breaks the file into a 1000 pieces the "in and of itself" infringement arguement can not be logically applied which means the courts should and MUST consider the validity of the fair use of "access shifting.
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The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. 'The sole interest of the United States and the primary object in conferring the monopoly,' this Court has said, 'lie in the general benefits derived by the public from the labors of authors.' Fox Film Corp. v. Doyal, 286 U. S. 123, 286 U. S. 127. See 62 U. S. 327-328; 31 U. S. 241-242. When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose."
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I am of the belief that the arguement that "we licience for a specific place only" is just as invalid as the "we licience it on a limited bases to be viewed at a specific time" (arguement struck down by the Betamax case).
Since the law was only designed to protect the income generating ability for the copyright holder, and courts have explictly ruled such (see highlighted portions).