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If this content is freely available, why can't we take a fair use copy? That is not a violation of copyright. Making a copy on its own is not fair use. What m

If this content is freely available, why can't we take a fair use copy? That is not a violation of copyright. Making a copy on its own is not fair use. What matters is the reason for making the copy. If you are making an connectivity-shifted copy (aka, for viewing away from internet access) there could be a fair use argument to download content from a streaming site that is not otherwise available for offline consumption. But the flipside of that: if there is a way to access the content in a way that fair use is not implicated (i.e., because the copyright owner makes the content available for that use case such as offline viewing, even if payment is required), then generally fair use does not apply. Remember: fair use is a defense to violating copyright, and it must be reasonable under the circumstances. Not wanting to pay for a license for your intended use case is generally never considered reasonable. If you can show it to me, then I am allowed to take a copy. That has never been the law, at any point in the history of copyright, dating back to before copying works was trivial.

yebyen 6y ago
In Sony Corp. of America v. Universal City Studios, Inc. the majority opinion stated: > [There must be] a balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. Is there a subsequent opinion that reversed that? (How is youtube-dl substantially different from a VCR recording, if youtube is substantially similar to a broadcast medium?) > [W]hen one considers the nature of a televised copyrighted audiovisual work ... and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact ... that the entire work is reproduced ... does not have its ordinary effect of militating against a finding of fair use.
- eightails 6y ago
  To play devil's advocate, I wonder if it can really be said that when you watch a youtube video you have been > invited to witness in its entirety free of charge when you consider advertising. It could be argued that when you watch a monetized youtube video you are being invited to view the video in exchange for also viewing advertisements as a form of payment. I hope that you're right though, and that we get a ruling in favour of being able to make copies for fair-use.
  - justinclift 6y ago
    > It could be argued that when you watch a monetized youtube video ... Not sure what one of those looks like. I hear people talk about them, but I've not seem an advert on a YouTube video. That being said, I do use a bunch of anti-ad browser extensions... :)
  - yebyen 6y ago
    For sure, that is the argument they will have to make! As a counter-argument, what if I paid for my youtube premium membership though, to avoid the advertising, and really what I want to do is to location-shift within the bounds of the law, I want to take my laptop into the wilderness and watch the movies I paid for, on an Indian reservation in front of a mountain scene, ... where there is no broadband or cell radio tower service? (Hypothetically of course! Youtube-dl is not only for Youtube.)
    - gamblor956 6y ago
      That's multiple different licensing scenarios. Paying for Youtube Premium doesn't give you a right to download whatever videos you want, since that right has to be granted by the copyright owners of the videos. If you purchased a movie, presumably this included the rights to watch it offline (and most of the movie lockers like Vudu, etc, generally include such rights), then the selling website generally makes available copies for offline viewing (and many Blurays include codes to activate on movie locker service to get a license for a digital copy). In such case, you would need to use that service for downloading the offline copy, because the Youtube copy isn't part of that license to you.
- gamblor956 6y ago
  That's the Betamax case. Congress generally overruled the Betamax case with the DMCA, which included specific provisions about copying tools.
  - yebyen 6y ago
    Copyright included fair use and the courts ruled that a balance for fair use must be maintained for the monopoly rights of copyright to be enforced, but congress wrote the DMCA and said "nah"? Yeah I'm gonna need to hear that from the courts, my assertion here is that the DMCA unfairly skirts around this provision of copyright, not that it superceded it outright. Those fair use rights are not an optional provision of copyright, (although many opinions have stated that copyright provides the author may refuse to allow copies if they technically can, unless you have relevant case law that superseded Sony Betamax, in that case I believe it was the minority opinion), I am not aware of any decisions that say anything other than "copies for fair use may be required for there to be fair use." But I am not a lawyer, and just because I haven't heard of the case doesn't mean it didn't happen...
    - gamblor956 6y ago
      Copyright included fair use and the courts ruled that a balance for fair use must be maintained for the monopoly rights of copyright to be enforced, but congress wrote the DMCA and said "nah"? The Constitution gave Congress the power to right the laws on copyrights, not the courts. The courts don't write copyright law, they just interpret it. Fair use, for example, is explicitly written into the copyright statutes by Congress (17 USC § 107), but with sufficient breadth and ambiguity in the language that the courts have added in uses that were not explicitly written into the law but could be reasonably read as being within the scope of the text of the law. That is indeed why the court in the Betamax case was able to characterize "time shifting" as fair use in the first place. Yeah I'm gonna need to hear that from the courts, my assertion here is that the DMCA unfairly skirts around this provision of copyright, not that it superceded it outright. Again, Congress gets to write copyright law... They get to change it how they want, so long as it does not violate the Constitution. (Note that the DMCA is an "act" of Congress, which is the method by which Congress actually writes and changes the laws of the US. When we refer to the DMCA, we are referring to the changes to US copyright law embodied by the DMCA.) Courts have upheld the constitutionality of the DMCA. Those fair use rights are not an optional provision of copyright, Yes, they are. The Constitution makes no provision for "fair use." In fact, by its bare text, it would appear that the Constitution would not support fair use because it provides for "exclusive rights" to go to creators and inventors (for the periods covered by copyright and patent). "Fair use" is entirely a legislative creation of Congress, and theoretically Congress could take it away. unless you have relevant case law that superseded Sony Betamax I don't know why you're hung up on Betamax. That case was based on the copyright law at the time of the case, i.e., the 1980s. Congress changed the copyright laws after that case (in the DMCA and other legislative acts), so Betamax is no longer relevant except as persuasive authority, and the underlying facts supporting the time-shifting as fair use ruling generally do not apply to digital content available on-demand.
TheCoelacanth 6y ago
> But the flipside of that: if there is a way to access the content in a way that fair use is not implicated (i.e., because the copyright owner makes the content available for that use case such as offline viewing, even if payment is required), then generally fair use does not apply. Can you cite a source for this? I do not believe that is generally the case. You are allowed to rip CDs even if the same music is sold digitally and you are allowed to DVR a TV show even if they sell DVDs of the same show.
- michaelmrose 6y ago
  By that logic one would only be allowed to record with a vcr shows that weren't available on tape. Furthermore according to parents logic VCRs shouldn't be allowed to exist because they can record from both categories.
  - gamblor956 6y ago
    It depends. If the shows are available with each episode available on a separate tape (and each separate tape could be individually purchased), then yes, the VCR fair use justification evaporates. But generally VHS tapes include multiple episodes and individual episodes can not be individually purchased (other than a limited number of very special episodes), so there is still an argument to be made for fair use on the basis of each individual episode. Furthermore according to parents logic VCRs shouldn't be allowed to exist because they can record from both categories. No, that's not at all what I said. VCRs are just tools. Tools are subject to a different analysis post-DMCA: does the tool have a substantial non-infringing use or is it deliberately designed to violate copyright? In determining whether a tool was deliberately designed to violate copyright, they look beyond just the mere function of the tool and examine why that functionality is present, and how the tool and that potentially-violating functionality is marketed. On that note: DVRs generally no longer exist today as standalone goods (see, for example Tivo, etc). This is because the copyright owners introduced new time-shifting licenses a few years ago, and your cable company, Hulu, etc. pay the copyright owners for the right to let their viewers view content on a time-shifted basis. A standalone DVR would generally have the primary purpose of violating those (relatively new) rights, and thus wouldn't pass muster today. What about VCRs? They're still okay. They make degraded, low-quality copies of broadcast transmissions for archival/time-shifted uses by people who have TVs that still connect to VCRs. As those people generally wouldn't be able to access the equivalent digital content on their TV, it's clear that the primary use of VCRs is for fair uses purposes.

yebyen 6y ago

In Sony Corp. of America v. Universal City Studios, Inc. the majority opinion stated: > [There must be] a balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. Is there a subsequent opinion that reversed that? (How is youtube-dl substantially different from a VCR recording, if youtube is substantially similar to a broadcast medium?) > [W]hen one considers the nature of a televised copyrighted audiovisual work ... and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact ... that the entire work is reproduced ... does not have its ordinary effect of militating against a finding of fair use.

eightails 6y ago
To play devil's advocate, I wonder if it can really be said that when you watch a youtube video you have been > invited to witness in its entirety free of charge when you consider advertising. It could be argued that when you watch a monetized youtube video you are being invited to view the video in exchange for also viewing advertisements as a form of payment. I hope that you're right though, and that we get a ruling in favour of being able to make copies for fair-use.
- justinclift 6y ago
  > It could be argued that when you watch a monetized youtube video ... Not sure what one of those looks like. I hear people talk about them, but I've not seem an advert on a YouTube video. That being said, I do use a bunch of anti-ad browser extensions... :)
- yebyen 6y ago
  For sure, that is the argument they will have to make! As a counter-argument, what if I paid for my youtube premium membership though, to avoid the advertising, and really what I want to do is to location-shift within the bounds of the law, I want to take my laptop into the wilderness and watch the movies I paid for, on an Indian reservation in front of a mountain scene, ... where there is no broadband or cell radio tower service? (Hypothetically of course! Youtube-dl is not only for Youtube.)
  - gamblor956 6y ago
    That's multiple different licensing scenarios. Paying for Youtube Premium doesn't give you a right to download whatever videos you want, since that right has to be granted by the copyright owners of the videos. If you purchased a movie, presumably this included the rights to watch it offline (and most of the movie lockers like Vudu, etc, generally include such rights), then the selling website generally makes available copies for offline viewing (and many Blurays include codes to activate on movie locker service to get a license for a digital copy). In such case, you would need to use that service for downloading the offline copy, because the Youtube copy isn't part of that license to you.
gamblor956 6y ago
That's the Betamax case. Congress generally overruled the Betamax case with the DMCA, which included specific provisions about copying tools.
- yebyen 6y ago
  Copyright included fair use and the courts ruled that a balance for fair use must be maintained for the monopoly rights of copyright to be enforced, but congress wrote the DMCA and said "nah"? Yeah I'm gonna need to hear that from the courts, my assertion here is that the DMCA unfairly skirts around this provision of copyright, not that it superceded it outright. Those fair use rights are not an optional provision of copyright, (although many opinions have stated that copyright provides the author may refuse to allow copies if they technically can, unless you have relevant case law that superseded Sony Betamax, in that case I believe it was the minority opinion), I am not aware of any decisions that say anything other than "copies for fair use may be required for there to be fair use." But I am not a lawyer, and just because I haven't heard of the case doesn't mean it didn't happen...
  - gamblor956 6y ago
    Copyright included fair use and the courts ruled that a balance for fair use must be maintained for the monopoly rights of copyright to be enforced, but congress wrote the DMCA and said "nah"? The Constitution gave Congress the power to right the laws on copyrights, not the courts. The courts don't write copyright law, they just interpret it. Fair use, for example, is explicitly written into the copyright statutes by Congress (17 USC § 107), but with sufficient breadth and ambiguity in the language that the courts have added in uses that were not explicitly written into the law but could be reasonably read as being within the scope of the text of the law. That is indeed why the court in the Betamax case was able to characterize "time shifting" as fair use in the first place. Yeah I'm gonna need to hear that from the courts, my assertion here is that the DMCA unfairly skirts around this provision of copyright, not that it superceded it outright. Again, Congress gets to write copyright law... They get to change it how they want, so long as it does not violate the Constitution. (Note that the DMCA is an "act" of Congress, which is the method by which Congress actually writes and changes the laws of the US. When we refer to the DMCA, we are referring to the changes to US copyright law embodied by the DMCA.) Courts have upheld the constitutionality of the DMCA. Those fair use rights are not an optional provision of copyright, Yes, they are. The Constitution makes no provision for "fair use." In fact, by its bare text, it would appear that the Constitution would not support fair use because it provides for "exclusive rights" to go to creators and inventors (for the periods covered by copyright and patent). "Fair use" is entirely a legislative creation of Congress, and theoretically Congress could take it away. unless you have relevant case law that superseded Sony Betamax I don't know why you're hung up on Betamax. That case was based on the copyright law at the time of the case, i.e., the 1980s. Congress changed the copyright laws after that case (in the DMCA and other legislative acts), so Betamax is no longer relevant except as persuasive authority, and the underlying facts supporting the time-shifting as fair use ruling generally do not apply to digital content available on-demand.

TheCoelacanth 6y ago

> But the flipside of that: if there is a way to access the content in a way that fair use is not implicated (i.e., because the copyright owner makes the content available for that use case such as offline viewing, even if payment is required), then generally fair use does not apply. Can you cite a source for this? I do not believe that is generally the case. You are allowed to rip CDs even if the same music is sold digitally and you are allowed to DVR a TV show even if they sell DVDs of the same show.

michaelmrose 6y ago
By that logic one would only be allowed to record with a vcr shows that weren't available on tape. Furthermore according to parents logic VCRs shouldn't be allowed to exist because they can record from both categories.
- gamblor956 6y ago
  It depends. If the shows are available with each episode available on a separate tape (and each separate tape could be individually purchased), then yes, the VCR fair use justification evaporates. But generally VHS tapes include multiple episodes and individual episodes can not be individually purchased (other than a limited number of very special episodes), so there is still an argument to be made for fair use on the basis of each individual episode. Furthermore according to parents logic VCRs shouldn't be allowed to exist because they can record from both categories. No, that's not at all what I said. VCRs are just tools. Tools are subject to a different analysis post-DMCA: does the tool have a substantial non-infringing use or is it deliberately designed to violate copyright? In determining whether a tool was deliberately designed to violate copyright, they look beyond just the mere function of the tool and examine why that functionality is present, and how the tool and that potentially-violating functionality is marketed. On that note: DVRs generally no longer exist today as standalone goods (see, for example Tivo, etc). This is because the copyright owners introduced new time-shifting licenses a few years ago, and your cable company, Hulu, etc. pay the copyright owners for the right to let their viewers view content on a time-shifted basis. A standalone DVR would generally have the primary purpose of violating those (relatively new) rights, and thus wouldn't pass muster today. What about VCRs? They're still okay. They make degraded, low-quality copies of broadcast transmissions for archival/time-shifted uses by people who have TVs that still connect to VCRs. As those people generally wouldn't be able to access the equivalent digital content on their TV, it's clear that the primary use of VCRs is for fair uses purposes.