[mythtv-users] Free US/Canada Listings

R. G. Newbury newbury at mandamus.org
Thu Sep 13 18:46:19 UTC 2007

Richard Freeman wrote:
> Jay R. Ashworth wrote:
>> We've all been *exceptionally* clear in explaining precisely why it is
>> that we would -- as the community of this list -- generally prefer to
>> see discussion of scraping-which-violates-expressed-terms-of-service of
>> listings providers --
> Might I just comment as a member of the community of this list that I'd
> be happy to see discussion on any fair-use technology that allows US
> users to obtain listings?  I won't claim to be speaking as "the
> community of this list" - just as a member thereof.  If I meet the
> community of this list in person I'll be sure to ask his opinion of the
> subject.

Like many, you miss the point. It's not the community that has a problem 
if the discussion is not about 'fair-use technology' Its just one 
person, or a few.

> For the number of tangentially-myth-related issues that get discussed on
> this list (video drivers, ivtv, linux admin, lvm, mdadm, Nextel PTT,
> etc) I think that obtaining scheduling data is closer to core than most.
> I certainly don't advocate violating the law, but enabling website users
> to use the listings they can access on a website in their own software
> for personal use should be fair-use. 

Basically there is no doubt that an individual a) stands no chance of 
being sued for using listings data and b) would clearly have an 
affirmative defence of fair use. But that is *an individual*. But ANY 
copyright owner can decide to sue for copyright breach, even when he 
knows (or has been told) that he will lose.

'Fair use' as a legal concept is fuzzy round the edges and not 
necessarily cuddly at the same time...

> The whole purpose of mythtv is to
> enable the wholesale recording of copyrighted materials for personal
> use, including copying onto DVDs, streaming off of websites, etc.

Danger! Danger! *wholesale recording of copyrighted materials*.
Its acceptable fair use if done for personal use. But what if the claim 
is that it is being done for a commercial purpose or to enable improper 

> Redistribution of this material by the project would certainly infringe
> fair use,

No-one here is going to redistribute anything but that is not the end of 
the problem.

> but the whole premise of the DVR is that end-users can or
> ought to be able to use tools furnished by others to make copies of
> copyrighted materials for personal use. 
"Ought to"
Click! You just stepped on the land mine. 'Tools furnished by others'. 
Do you remember the name Jon Johanson? He was a nice Norwegian kid who 
wrote 'decss' and ended up being sued in a New York court *and* charged 
with a criminal computer offence in Norway (maliciously, I believe).

The DMCA (hah! got it right this time!) is so amorphous in the 
definitions that no-one can tell if any particular software is an 
improper attempt to circumvent blah blah blah. I strongly suggest that 
you take the time to find and read 17USC 1201 through 1204 (try 
thomas.loc.gov) and consider the fuzzy edges of the definitions of what 
is improper. 'No person shall...offer to the public...any technology 
that is primarily designed for the purpose....'

(Warning, technical legal terminology will be used: discretion is 
advised.) We cannot trust the assholes at the MPAA, RIAA or wherever not 
to throw their weight around. They have the money and the excess 
testosterone. It does not matter to them whether they are right or wrong 
as a matter of law in making the claim. The *effect* of making the claim 
may be more important than the result. (Luckily, sometimes the effect 
blows back in their face!)

  And while to my knowledge
> nobody has been sued over screen-scraping listings data into a program
> there have certainly been lawsuits over DVRs and recording technology in
> general.

Yes.... and ?? This proves that the assholes will not attempt to expand 
the reach of the concept?? These assholes (sorry for the technical legal 
terminology) sued a 16 year old Norwegian citizen in a New York court 
for code written in Larvik, Norway. And there was no evidence that he 
had ever used that code in the US or specifically offered it to US citizens.

> Obviously not everybody on this list agrees on this position, and that
> is perfectly fine.  I don't really see any point in arguing over it, and
>  my point in voicing my opinion isn't to add to the noise so much as to
> encourage those who have something meaningful to add to add it and not
> be put off because a couple of really vocal people want to stifle
> discussion on a particular topic.  If you feel very strongly about
> screen-scraping then just delete any said topics that you notice on the
> list - in the total volume of this list they're going to end up being a
> small fraction of the posts...

You are missing the point, like many have. I do not care if people want 
to discuss the coding of screen scrapers which hack there way through 
any and all impediments to grab the data in defiance of the terms of 
service of the site. Go to. Have fun.


As a lawyer, part of my job is to advise people about (in very general 
terms) risk. "Don't do that. It's illegal" is avoiding a major risk.

"Do this instead" may be a method of avoiding a risk. You want to go 
from A to B and the answer is that you cannot go directly... but you may 
be able to go by way of C,D, E and F. You want to transfer the shares of 
a privately held corporation into another corporation, *without paying 
capital gains tax*. There are ways to do that...some of them entailing 
more risk than others  and some of them rather complicated stepwise 
transactions... which may fall under an 'anti-avoidance rule'....

Here there is an amorphous and uncontrolled area of risk which is almost 
entirely aimed at Isaac as the list owner and progenitor of mythtv. Do 
you not think that there are some members of the 'content industry' who 
would *love* to see VCR's, Tivo's and DVR's such as myth restricted or 
limited as a result of a court case? Do you not understand that if those 
assholes want to try a test case, they will choose an example who they 
think is *least* capable of defending himself. It does not seem to 
matter to the RIAA for example, whether the claim is sustainable or true.

So I will say this one last time: I see Isaac and other myth devs, as 
being at risk of being dragged into a lawsuit, if someone else writes on 
this list, about matters which could, by the most remote of means be 
considered to come even close to 'circumventing a technological measure'  .

Now that risk may be extremely small but if it occurred it would be 
extremely expensive. The parameters or limits of the risk are 
unascertainable: that is, what could be considered improper. And because 
there is NO caselaw, the extent to which a First Amendment free speech 
right/defence could be asserted is completely unknown when you get into 
the area of discussing 'circumvention'. And damned expensive to 
determine too. So, using the usual risk times damage against the cost of 
aversion matrix, this is an expensive risk which should be avoided and 
which can be avoided at minimal cost. And there is no insurance available.

How can the risk be avoided? By not having discussions of questionable 
matters on this list. Those should probably happen on a foreign based 
list, so only the US writers face any risk at all and more likely face 
no risk whatsoever if they are careful.

In the real world, if someone starts selling crack beside you at the bus 
stop, you move. Similarly if you want to discuss questionable matters, 
do it elsewhere. All that having been said, it is only a small area of 
things which I do not think should be discussed here.

Why am I running on about this? Because, as a lawyer, I can see the 
danger and because I do not want mythtv to get messed over and because I 
do not want to see Isaac get messed over and because I HATE IT, when 
people are obtuse or irrational or stupid about things which are 
'dangerous' or 'risky'.

In a very real sense, *EVERY* law report is the history of a mistake. 
The mistake may bave been a physical one: who caused the accident. It 
may have been a factual and legal one: 'you are dismissed for cause'. 
(That's both factual and legal dynamite). And it may have been a purely 
legal one: 'our lawyers say the contract gives us the right to 
terminate'. But the parties never end up in court without SOMEONE being 
wrong. And it is not always possible to determine who will be found to 
be wrong. And remember, the person in the courtroom who knows the least 
about what happened is the person who decides. The parties and their 
lawyers know lots more about it. And sometimes the best advice a lawyer 
can give to a client about something is to sound exactly like your 
mother when she said "Don't DO that!" "Whhhyyyy" "Because I said so."

And it takes all of these recycled electrons because, as a lawyer I am 
never, ever prolix, verbose or longwinded. To the contrary, I am always 
short, terse and succinct.

Because I said so!

              R. Geoffrey Newbury			
            Barrister and Solicitor
       Suite 106, 150 Lakeshore Road West
          Mississauga, Ontario, L5H 3R2

         o905-271-9600 f905-271-1638
           newbury at mandamus.org

And that second last paragraph is probably the ONLY existing lawyer joke 
which uses no bad language, does not presuppose the death, dismemberment 
or bankruptcy of anyone, and furthermore insults no-one!.

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