So what's in your CD player right now?

Tue, 12 Mar 2002 10:13:12 -0800

And this time I respond publicly ;)

> Time-shifting for your own use is obviously completely legal.  Sharing
> the archive that you build up using your own computer and radio is the
> only issue.

Remember, the court was struggling in the Sony case.  Here they had a
quandry:  Fair use exists, and there ARE television shows taht fall under
the purview of public domain (the court specifically mentioned (as i'm
reading the case over again) educational, religious and sports events,
(THaNK you Mr. Rogers!).  So the court had no desire to completely wipe the
market of something that was being used both legitimately and
illegitimately.  Time shifting was the answer, but I'm not sure it would
apply in this case.

The court made one really important argument here, that I dont' see as
likely from your idea:

"The District Court's conclusions are buttressed by the fact that to the
extent time-shifting expands public access to freely broadcast television
programs, it yields societal benefits. In Community Television of Southern
California v. Gottfried, 459 U.S. 498, 508 , n. 12 (1983), we acknowledged
the public interest in making television broadcasting more available.
Concededly, that interest is not unlimited. But it supports an
interpretation of the concept of "fair use" that requires the copyright
holder to demonstrate some likelihood of harm before he may condemn a
private act of time-shifting as a violation of federal law. "

These were publicly broadcast television shows.  The content providers had
control over what they put out there.  People were merely copying the
transmission and watching it later.  And they were watching it in the HOME
(this was a comment that the Supremes emphasized half a dozen times).  Your
idea, especially if it transfers over the net, would negate the safety that
timeshifting is afforded -- its outside a controlled, constitutionally
protected space.  The net is still wild, and uncontrollable (at least
according to the content providers).

The court also hit on the main requirements of fair-use :

[ Footnote 30 ] Section 107 provides:

"Notwithstanding the provisions of section 106, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use),

[Me note:  NOW, if you could somehow convince the world that the net was a
giant classroom... ;) -BB]

scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case is a fair
use the factors to be considered shall include -

"(1) the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes;

[Nonprofit possibly, but that would mean you would have to likely go through
more steps than you were planning on]

"(2) the nature of the copyrighted work;

"(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

[In this case, you're copying a whole song, or whole album, and effectively
(if I read it correctly) streaming it back.  Assumptions being that the
whole of the work will be used, and that you already owned a copy to begin

"(4) the effect of the use upon the potential market for or value of the
copyrighted work." 17 U.S.C. 107 (1982 ed.).

[I always found this last bit rather sketchy.  Each side can bring in an
economist to magnify or diminish the economic effects of the contested
technology-- Look at napster.  ]

>I agree that this is a problem, but I don't >agree that it
> is 'performing'.  I am talking about 'sharing a >time-shifted copy'.

I'd argue that in the realm of what the Supremes were considering (Sharing
in the home, remember), this 'sharing' would be closer to the spectrum of
'distribution' or 'performing' than merely time-shifting.

> remember reading language about the VCR cases where they specifically
> allowed you to share a videotape with friends and family that were in
> the same viewing area.  I doubt this area can be stretched too much
> however, especially in the current climate.
> RIAA would probably try to complain about sharing telemetry about song
> start/stop, title, etc., but in this case they would have a problem
> since the activity supported, timeshifting, is clearly legal.

The important point also being that folks didn't hold on to their betamax
tapes -- they watched at a later time and destroyed.  Are you proposing to
follow the same standards?

>The play
> details could only be protected via a compilation copyright by the radio
> station (or charting companies), but this seems tenuous and RIAA would
> have no standing.
I have no idea exactly what you're driving at here.  :-)