Re: List Management: Re: [d@DCC] Future CBC "the docket" on digital copyright.

From: Kristofer Coward <kris _-at-_ melon.org>
To: General Discussion <discuss (at) digital-copyright.ca>
Date: Wed, 26 Feb 2003 00:56:01 -0500
References: <20030222181720.GT483@melon.org> <Pine.LNX.4.44.0302252325370.17672-100000@calcutta3.flora.ca>

On Tue, Feb 25, 2003 at 11:45:14PM -0500, Russell McOrmond wrote:
> 
> On Sat, 22 Feb 2003, Kristofer Coward wrote:
> 
> > I doubt it, but that's because I doubt that what's being arranged here
> > is really infringing. I'm inclined to believe that it's a perfectly
> > legal instance of time/space shifting that just happens to use mpeg and
> > the internet instead of VHS and hand-delivery. It's more of a public
> > demonstration of legitimate, non-infringing use of the technology
> > currently under scrutiny.
> 
>   If you can quote me the section of the copyright act
> <http://laws.justice.gc.ca/en/C-42/> that allows that VHS tape to leave
> your home and be considered a form of "fair dealing", then I'll take back
> the comment.  I'm not commenting on the different medium, but the act
> itself on any medium with any method of delivery.

Ok then s/infringing/enforcably illegal/

>   In fact, I am interested to read first hand the *Canadian* legal
> precedent which allows us to record on any medium for personal usage (such
> as time/space/medium shifting) from the TV signal in the first place.  I
> believe that the USA has time-shifting for private use and other such
> things in their act under fair use, but I haven't seen this in the
> Canadian Act under fair dealing.

True, there's no Canadian precedent for this sort of thing (well unless
you want to pick nits and look at the things the judge _didn't_ say
were infringing about ReplayTV) but I've heard from some sources that I
tend to trust that judges have a habit of checking out relevant rulings
in other jurisdictions to help them decide how to rule.

>   Watch the CBC newsworld piece on Thursday.  Did you know that story time
> at the public library is technically infringement, as is playing a
> boom-box at a public beach?  These two examples are used -- be infuriated,
> get informed, and be involved in changing the law.

I can't watch the newsworld piece unless someone tapes/captures it for
me. I currently have no usable recording equipment, and a lecture to
attend while it is being broadcast. This was my principal motivation
for asking someone on this list to hook me up with a recording. I asked
on this list primarily because I figure that it is a forum in which it
is relevant, and in which I am most likely to find someone else who
will be watching it (and maybe even recording it). That I made an
off-hand remark about the irony of the fact that this forum spends a
good deal of time discussing that my request was technically illegal
shouldn't be of any consequence. I mean hell, it just means that we're
not ignorant of the law in question, but when was ignorance ever a
valid defence?

>   I also find it frustrating that fair dealings is only a defense against
> infringement, and not currently considered a right.  While we can get
> caught up on infringement for things that simply don't make sense, we
> can't sue a copyright holder for setting up technology or otherwise
> disabling actions which are not infringement.

That sounds like a small specific objection to current law/practice.
Small specific objections make me happy. I've tended to have good
responses from legislators and other decision-makers when I've gone to
gripe about small specific objections. I'm keeping that one in mind.

>   I am looking for a legal opinion, but my understanding is that what was
> discussed in this forum of one person taping for someone else's use without
> the permission of the copyright holder is infringement (under any
> medium/delivery including VHS/hand delivery or MPEG/Internet delivery).
> 
> 
> Note: Whether it is a de minimis crime that should never be enforced, and
> the law should change, is a separate conversation from whether it is
> currently infringement.

True, and it probably is infringement. Of course, it's also quite
impossible for me to watch the program in question unless someone steps
forward and conspires to infringe copyright with me. (I'm quite happy
to conspire in private, and those of you who remember when I first
showed up with my PGP/MIME nuisance will also be aware that I'm quite
happy with said act of conspiracy being encrypted if you feel it
necessary)

-- 
Kristofer Coward				http://unripe.melon.org/
GPG Fingerprint: 2BF3 957D 310A FEEC 4733  830E 21A4 05C7 1FEB 12B3
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