[mythtv-users] Broadcast Flag Article mentions MythTV and quotes Issac

Shawn Willden shawn-myth at willden.org
Fri Mar 4 15:33:34 UTC 2005

Andy Long wrote:

>No, this is not "rightly" something that media companies should be
>allowed to prevent.  Under current law, they CAN'T prevent it.  It is
>perfectly legal of you to lend a copy of a movie/TV show to a friend
>to borrow and watch. 

Unfortunately, it's not clear that this is true.

IANAL, but I have read Title 17 a few times and I have done a little 

As I understand it, the "black-letter law" doesn't explicitly provide 
for sharing.  Instead, it defines a vague category of Fair Use, with a 
four-part test courts have to use to decide if a particular copying or 
derivative work-creation activity is Fair Use.

Recording a show off of the TV and sharing it with a limited number of 
friends, without commercial gain was basically determined to be Fair Use 
by the US Supreme Court in the Betamax decision in 1984.  Sony argued 
that although the law didn't say this sort of use was legal, that a 
tradition had been established by audio cassette recorders.  The 
argument was upheld by the District court, reversed on appeal and then 
re-upheld by the USSC.

That Betamax decision, plus the First Sale doctrine, is the basis for 
the argument that you can copy a broadcast and loan it to a friend.

However, that was in 1984.  Copyright law has changed twice since then, 
with the passage of the CTEA and the DMCA.  I don't know if any 
provisions of the CTEA affect this, but the DMCA certainly does.  If the 
courts were to decide that the broadcast flag is a "copy-protection 
device", then manufacturing and selling any device that "circumvents" it 
would be illegal.  There are no Fair Use exceptions to the 
anti-circumvention provisions in current copyright law.

And what's worse is that even though the courts look to be slapping down 
the FCC's decision to implement and enforce the Broadcast Flag, on the 
grounds that the FCC is not authorized to make law, only implement it, 
Big Media might still be able to get it by going back to Congress.  They 
tried that once, and it didn't take, but that doesn't mean they won't 
try again.

That means that it's *very* important right now that everyone who cares 
about this issue be pushing the meme that it *should* be okay to copy 
broadcast TV shows (as long as you're not doing it commercially, or for 
"group" showings -- I think those are reasonable restrictions).  We need 
to make sure that every American "knows" that it's okay so that when the 
question goes back to Congress, we'll have some support.

And it's also important to support the Digital Consumer's Bill of Rights 
(digitalconsumer.org).  Getting that passed would put all of these fears 
to rest.


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