[mythtv-users] Boxee/Hulu?

[Eric Sharkey]

On Sun, Mar 1, 2009 at 5:49 PM, Steve Hodge <stevehodge at gmail.com> wrote:
> On Sun, Mar 1, 2009 at 10:28 PM, Eric Sharkey <eric at lisaneric.org> wrote:
> My lay opinion is that this would not be considered fair use. USC 17 section
> 107 defines fair use:
> "...the fair use of a copyrighted work, including such use by reproduction
> in copies or phonorecords or by any other means specified by that section,
> for purposes such as criticism, comment, news reporting, teaching (including
> multiple copies for classroom use), scholarship, or research, is not an
> infringement of copyright."
>
> You're not doing any of that.

Right, but that list is not exhaustive.  The word "including" means
that these are just a few examples of what constitutes fair use.
These examples involve reproduction and republication, since this is
the bulk of what copyright law deals with.

The messy truth of it is that fair use is whatever a court determines
it to be on a case by case basis.  Historically, courts have put the
most weight on "(4) the effect of the use upon the potential market
for or value of the copyrighted work".

It's my opinion that fair use is justified in this case given that
fair use considers  "the purpose and character of the use, including
whether such use is of a commercial nature" (private viewing by an
individual is clearly non-commercial) and as you say, the most
important point, since this is an advertisement driven business model
and the ads are not being removed it's very hard to argue that the
behavior has much effect on the potential market for the work.

I don't think it's reasonable to argue that the copyright holder might
make more money if the viewer were to subscribe to cable rather than
taking advantage of the Hulu service.  By this logic you could arrest
every DVD rental customer, since they should have seen it in the
theater or bought the DVD.


Ultimately, what this comes down to is two fundamentally different
points of view among the people participating in this discussion.  On
one side are people who think that a business is in its rights to set
up whatever conditions it likes for access to the business and that by
violating the terms of service the initial right to access the work is
void.  On the other side are people who feel that certain terms of
service are unjustly discriminatory and should not be enforcible.

The courts are not of one mind here either, but the direction over the
past 100 years or so seems to be in the direction of forcing
non-discriminatory policy on businesses whether they want it or not.