Dear gamarc,
The answer is no. It would not be legal for anyone to take part in the
unlicensed distribution of a TV show. Neither American nor British law
provides for such an exception to the content creator's rights, known
as the copyright. It is a violation of copyright in both countries to
share a copy with anyone, whether friend or stranger. Furthermore,
even though you are allowed to copy a broadcast for personal use, the
law does not guarantee that you will be able to exercise that right.
For example, if some content is protected against copying, you would
be breaking the law by the act of defeating that protection,
regardless of your right to personal use.
The principle that allows consumers to copy a work for personal
convenience despite any copyright adhering to that work is called
"fair use" in American law. The doctrine of fair use as applied to
television broadcasts was enunciated in a 1984 Supreme Court decision.
"This year marks the twentieth anniversary of the Supreme Court's now
famous Betamax decision. On January 17, 1984, the Court ruled that
Sony's Betamax VCR was perfectly legal. The majority opinion, written
by Justice John Paul Stevens, said that although you could, in theory,
use the device to record copyrighted television shows and movies and
then sell them for profit, most consumers merely used their VCRs for
"time-shifting," recording their favorite shows for viewing at a later
time. Americans, the court decided, should be allowed this sort of
'fair use.'"
PC Magazine: Congress Revisits the Copyright Act
http://www.pcmag.com/article2/0,1759,1594174,00.asp
However, the consumer's power to exercise fair use has been
compromised by recent copyright legislation, which holds that you may
not defeat any anti-copying mechanism even on a product you have
purchased and now own in perpetuity.
"For example, you have the legal right to possess a copy of a song in
order to play it in your car stereo; but if your CD is copy-protected,
it is a crime to circumvent the copy-protection in order to make the
copy. So your right to possess the copy is useless because you have no
way to exercise it. Anti-circumvention trumps your fair use rights."
DigitalConsumer: Frequently Asked Questions: But how can they stop me
from copying a CD?
http://www.digitalconsumer.org/faq2.html#faq_2_2
What you are asking, however, goes well beyond the fair use doctrine,
regardless of what anti-copying mechanisms are in place. If you find a
file on the Internet containing a copy of a TV show, the person who
put it there was not entitled to do so. The sole exception to
copyright allowed by fair use is accorded to the consumer who receives
the broadcast. By making his copy available for others, he is
transgressing the boundaries of fair use, as are those who download
his copy. Whether they are caught is a different question. I have
personal knowledge that many content pirates, indeed the vast
majority, go unpunished, but that doesn't reduce the severity of their
crimes. The courts are not lenient with those who are caught.
The fact that you may be in a different country from the copyright
holder or from the intended consumer of the content is not a
mitigating circumstance. Under American law, you are liable for
transgressions of any work covered by an American copyright. Note that
British copyrights are transferable to the United States. Britain has
its own version of copyright exemption, known as "fair dealing", which
is compatible with the fair use doctrine.
"British copyright law has a set of exceptions to copyright known as
fair dealing. [...] The final major exception that the general
population commonly runs into is that of recording broadcasts for time
shifting. This was brought about by the rise of the video recorder in
the early 1980s. The exception only applies to copies for private and
domestic use."
Wikipedia: Copyright law of the United Kingdom
http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom
The distribution and downloading of someone's personal copy of a
copyrighted work on the Internet runs afoul of fair dealing. True, it
is improbable that the lawyers of the British Broadcasting Corporation
would take the trouble to target you personally in any lawsuit. Even
if you were implicated in an illegal transaction, they would be more
likely to lean on the person who distributed the content or on the
service providers or technologists who made it possible for the
distribution to take place at all. Nonetheless, to take any part in a
copyright violation would be illegal as well as morally repugnant. The
fact that you cannot easily enjoy the show otherwise is no excuse. My
advice, then, is that you should steer clear of any opportunity to
violate the television show's copyright.
Regards,
leapinglizard |
Request for Answer Clarification by
gamarc-ga
on
25 Nov 2004 19:14 PST
Thanks for your answer, it mostly addresses my original query (and you
also make allusion to the DMCA, which I am painfully aware of since it
makes it illegal to play a legally purchased DVD with an open source
application on linux for instance, but that's another subject
altogether ;)
The one part I'm slightly unclear about is this, so let me just
rephrase what you said to confirm that I understood correctly:
Taping a show from TV or the radio is legal and protected by fair use.
However, is it technically illegal if I lend this copy to my
neighbour? (something that people have done with video tapes for ages,
to the point that I've always thought it was legal).
If recording off TV/radio and giving the copy to a friend/neighbour is
also illegal, then it would make sense that it also applies to a
digital copy made over the internet.
If not (i.e. it is legal for a cassette/video tape), then the line is more blurry.
Either way, if I follow you correctly, in the case of a State of
Trance, which the radio station does broadcast over the internet, it
is legal for me to record it on my computer and listen to it again
later, but it is not legal for me to get a copy from either my friend
or some person on the internet, if I failed to record it myself
because I was busy/on vacation/whatever
Is that correct?
In other words, what you describe as "downloading of someone's
personal copy of a copyrighted work on the Internet runs afoul of fair
dealing", in this case applies to "failing to record it myself at the
time it was broadcast and requesting a copy from someone who did
manage to do the recording" (I am of course never referring to
something that was never broadcast and available for personal
recording in the first place, since this would be a very clear
copyright violation, and I can purchase the said content myself in the
first place)
Did I understand you correctly?
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