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Discussion Starter · #1 ·
Since the EFF and other plaintiffs in this new lawsuit are not planning to seek class action status, do we have any lawyers in the house who would volunteer to file an amicus curiae brief with the court in this matter combining our collective thoughts as a community of ReplayTV customers and users? I think the EFF's lawyers missed a few important points:


- Better comparing of DVR and VTR technologies.

- Challenging the silly notion that "digital" recording is "perfect." We all know the limitations of MPEG-2 and other lossy formats.

- Distinguishing between sending shows over the Net and streaming them to another unit in the household.

- Comparison to someone purchasing a book and making copies of various interesting pages for themselves.

- Comparison to reading a magazine after shuffling out the index subscription cards, or skipping the previews at the theater.

- the fact that "copyright" has to do with "right to distribute," not "right to copy."

- Commercial Advance(tm) is patented, FWIR. You'd think an invention would not seek or gain patent protection if its intended use is illegal.

- SonicBLUE has nothing to do with RTV-to-computer transfers (which should still be legal, but the point should be made that this is no Napster).

- that sending shows is limited and is *VERY* slow, etc.

- The distinctions between OTA, cable, premium, and PPV content.

- The other non-infringing uses besides TV recording: home videos, viewable backups of frequently-used videos, etc.


These are just a few thoughts, I'm sure there are plenty of others out there, it'd be nice if someone with some knowledge in the field could sift through them, separate the wheat from the chaff, and see if we can help bolster the argument from more sides. Perhaps even the TiVo community would be interested, since they will likely have similar features in the future.
 

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Discussion Starter · #3 ·
Not yet, I was kind of hoping we could get a thread going and have someone with more legal knowledge (IANAL, I just watch too much of it on TV) pick out the best parts to send to them (so they don't have to sift through it), or better yet file an amicus brief so the court knows that there is an entire community behind the EFF and our fellow Replay users named in the suit. Our arguments may also be more varied than the ones their lawyers want to concentrate on, but an outside filing would help bolster their position with the circumstantial and common-sense arguments that may not make it into the courtroom debate.
 

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I Am Not A Lawyer
 

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I am not a lawyer but I am an attorney.


Of the items listed above, every single one is an excellent point for the movie studios to bring up. If they read this forum I'm sure they're thanking us right now.


A true RIGHTS claim doesn't attempt to limit itself to "Only" "specific" rights about "specific type" of "activity which is this or that." It is broad and general on purpose.


COMPARINT DVRs and VTRs is bad. EQUATING them is good.

COMPARING types of content (in an attempt to distinguish how they should be treated by the court) is bad. EQUATING them as just plain "content which we should be allowed to copy as we always have on VCRs" is good.


Suggesting that Digital Recording isn't perfect is a red herring. WE the users want the RIGHT to record it AS GOOD AS REASONABLY POSSIBLE. Whyfor would we start creating a line in the sand below which it's allowed to copy and above which it's not, and which invariably changes with technology, CODECs, swapping bits in the vbi (to create a "lossy" version that would qualify), etc.


I think the best approach that I've seen thus far IS the one the EFF is taking. They want the court to proactively rule that the use of DVRs for personal archive and viewing does NOT violate any laws.


They want the court to proactively rule that we CAN skip any part of it that we want -- algorithmicly or press-the-button-lee ;-)


Anyway, that's my take on it -- IANAL :)


Mman
 

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Um, not to be horribly dense, but what's the distinction between an attorney and a lawyer? :confused:
 

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Yeah, I was wondering that myself... I guess you can give someone power of attorney, so they could technically be an "attorney" without being a lawyer.


Or possibly someone who graduates from law school but never takes or passes the bar might be technically able to call themselves an attorney but not a lawyer (just a WAG on this last one, though).
 

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Quote:


From dictionary.com:



lawyer


\\Law"yer\\, n. [From Law, like bowyer, fr. bow.] 1. One versed in the laws, or a practitioner of law; one whose profession is to conduct lawsuits for clients, or to advise as to prosecution or defence of lawsuits, or as to legal rights and obligations in other matters. It is a general term, comprehending attorneys, counselors, solicitors, barristers, sergeants, and advocates.
and
Quote:
attorney


\\At*tor"ney\\, n.; pl. Attorneys. [OE. aturneye, OF. atorn['e], p. p. of atorner: cf. LL. atturnatus, attornatus, fr. attornare. See Attorn.] 1. A substitute; a proxy; an agent. [Obs.]


And will have no attorney but myself. --Shak.


2. (Law) (a) One who is legally appointed by another to transact any business for him; an attorney in fact. (b) A legal agent qualified to act for suitors and defendants in legal proceedings; an attorney at law.


Note: An attorney is either public or private. A private attorney, or an attorney in fact, is a person appointed by another, by a letter or power of attorney, to transact any business for him out of court; but in a more extended sense, this class includes any agent employed in any business, or to do any act in pais, for another. A public attorney, or attorney at law, is a practitioner in a court of law, legally qualified to prosecute and defend actions in such court, on the retainer of clients. --Bouvier. -- The attorney at law answers to the procurator of the civilians, to the solicitor in chancery, and to the proctor in the ecclesiastical and admiralty courts, and all of these are comprehended under the more general term lawyer. In Great Britain and in some states of the United States, attorneys are distinguished from counselors in that the business of the former is to carry on the practical and formal parts of the suit. In many states of the United States however, no such distinction exists. In England, since 1873, attorneys at law are by statute called solicitors.


A power, letter, or warrant, of attorney, a written authority from one person empowering another to transact business for him.
Whew, and I'm still hazy on it. :D


-Aaron
 

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Discussion Starter · #10 ·
Good points, Markus98...


The problems with "equating" are just that--the media companies have already made arguments why VTR and DVR technologies are different, and I don't see much from the EFF's side to set the record straight. I love my Replay, but it is basically a VTR without the "T." I also believe that equating content will be a difficult task.


I agree that the quality of recording should not be an issue, that time-shifted viewers are not second-class viewers, but I think they are trying to make the DVRs not meet the burden of 17 USC 107 by suggesting that the "amount" (qualitatively) of the recording does not pass muster. If fair use is the only leg we stand on (and it is not, there are plenty of other good arguments in copyright law that don't relate to fair use or the Sony decision), the point should be brought up. None of us think that PVR recordings are equal to DVDs, but neither do we think that matters in the question of whether we should be able to watch it when and how we want to.


I hope the EFF can rely on reason and principle in their arguments, but it is frustrating to see the movie studios make this molehill into a mountain. We shouldn't stoop to their level of FUD, but we all know they are playing loose with the facts and helping setting the record straight might also show just how disengenuous they are.


Oh well, I see the interest isn't there for filing a brief, just threw it out as a way we could help beyond EFF donations, DVD boycotts, and rallying in public fora. :)
 

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Quote:
And will have no attorney but myself. --Shak.
And people thought he wasn't very eloquent... ;)


I am neither a lawyer nor an attorney. As a New Englandah, I am a lawyuh.


Great discussion on additions to an amicus brief but query whether leave of court is required to file it ?
 

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Originally posted by richardtallent
- the fact that "copyright" has to do with "right to distribute," not "right to copy."
You made a number of really excellent points, but this one is wrong. 17 USC 106, which sets out the exclusive rights of the owners of copyrighted works provides for two separate exclusive rights, in clause (1) the right "to reproduce the copyrighted work in copies" and in clause (3) the right "to distribute copies ... of the copyrighted work." Thus copyright includes both the right to copy and the right to distribute. Thus copies made on an RTV are in infringement of an exclusive right unless they are fair use. That is why your later statement "f fair use is the only leg we stand on (and it is not, there are plenty of other good arguments in copyright law that don't relate to fair use or the Sony decision)" is also pretty much wrong. FWIW, my opinion is that recordings made on a PVR have better fair use potential than those made on a VCR because they are inherently ephemeral. The issues in the RTV case boil down to two questions: (1) is it a copyright violation (i.e., is it not a fair use) to share programs using a ReplayTV, and (2) is there anything in the law to support the notion that it is a violation of copyright to facilitate skipping of commercials. My personal opinion is that the answer to (1) is yes and to (2) is no. The reason for that is that (1) clearly runs afoul of existing law, while (2) has no support in existing law, and judges, particularly at the district court level, are not inclined to make new law.
 

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Discussion Starter · #13 ·
> Thus copyright includes both the right to copy and the right to distribute.


Thanks for the comments. I guess I should have clarified a bit... although legislatively there is protection against actual duplication, it has only been this way since 1909, not back to the original 1790 legislation. Even now, the purpose (like "possession with intent to sell") is more the cart than the horse. Since one important fair use criteria is economic impact, one can argue quite successfully that personal copies are well within our rights. Joan Feigenbaum and Ernest Miller wrote an interesting article that appeared in Proceedings of the 2001 ACM Workshop on Security and Privacy in Digital Rights Management that proposes that this interpretation makes much more sense in the digital age. ( http://www.cs.yale.edu/homes/jf/MF.pdf ).


> your later statement "f fair use is the only leg we stand on (and

> it is not, there are plenty of other good arguments in copyright law

> that don't relate to fair use or the Sony decision)" is also

> pretty much wrong


I agree that fair use is sufficient to show that we are within our rights in using time-shifting devices, but I do think there are other arguments that can be made about the spirit of copyright law outside of § 107. These are very weak and untested (AFAIK) arguments, but they may be worthy of exploration at some point (I don't know, like I said I'm not a lawyer and certainly not an IP expert). For instance:


§ 109(a): First-Sale Doctrine. Once the notion that the act of recording itself is legal has been established, it follows that the legal copy may be disposed of as the user wishes. There is no requirement for copies to be temporary (although I agree that since copies usually are on a DVR it is even a better device than a VCR in that regard). We do not have to put up with, for instance, a time fuse that deletes our recordings after so many days or viewings. This also protects our right to transfer the copy to another party (but not to copy it again, so this could only be used to protect the "Send Shows" feature if "sending" was a "file move" instead of a "file copy" action, something I for one could live with as a compomise).


§ 117: An MPEG-2 file could be considered a computer program. It is not exactly Turing-Complete, but is procedural, logically expressed, and has an intended purpose. Warner Home Video has actually been trying to classify DVDs as software in an Australian lawsuit, their success might give some precedent here. Under this section, owners of such files may back them up, and adapt the code to work on other machines/platforms. Even if digital media cannot be classified as software directly, the reasons for these rights being available to owners of computer programs (backup, repair, upgrades, and porting) are the same as the needs that digital media owners have. Such an interpretation by the courts would permit uses such as MP3 players, transfer of media to and from general-purpose computers, and backup to CD or DVD media.


Like I said, not exactly case-blowing ideas, but I was just pointing out that there are other copyright exemptions beside fair use that could be interesting to look at.


As far as your conclusions go, I think I'm pretty much in agreement with (1) and (2). There must also be a distinction in (1) between the "Send Show" feature and the ability to stream across the same household. While I can't think of any precedent for (2) either, I think the common-sense approach will work here (do we have the right to skip through pages in magazines with ads? What if someone invents a page-flipping device for us? Are vision-impaired people forced to listen to advertisments read by reading machines or may they also skip the pages? Can we enter the movie theater after the previews and ads have finished? Does allowing entrance violate the theater's agreement with the studios to show the ads?).
 
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