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.

> [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.

> 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.

>> 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.

The problem with this idea is that you're quoting a case about recording televised broadcasts. The quote you pulled your quote from begins "when one considers the nature of a televised copyrighted audiovisual work".

Televised works were shown with embedded advertising a lot more intrusive than what can appear on a YouTube video. There is no way for the presence of advertisements to affect how this argument applies to YouTube, when it was originally cast in terms of television.

The content holder licensed the content to Youtube (or Vimeo, etc), but does not necessarily control the monetization of that content by the licensee. (Generally, the license will say something like royalties shall be X% of revenue derived from the content, without limiting itself to specific methods of monetization.)

Youtube doesn't have a license to give to the viewer; the license they have is merely to show you the content.

I hope that you're right though, and that we get a ruling in favour of being able to make copies for fair-use.

This has been the law for several decades already. But the key thing to understand is "fair use" doesn't mean "to avoid paying." If digital content is available for purchase, the courts generally have not found making a permanent copy from a streaming source to be fair use. (Where it gets complicated: multiple copyrights applying to a single work, such as the dancing baby Prince video. The creator of the video was okay with people viewing it and downloading it freely, but Prince was not. In the music arena, this would be a non-issue due to compulsory licenses, but those licensing schemes don't exist for other types of media. Ultimately, the court said that the focus of the video was the toddler dancing, and that the music was incidental, so including it in the video was a legitimate fair use. But it took more than a decade for the case to be resolved.)

(Hypothetically of course! Youtube-dl is not only for Youtube.)

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.

You can assert all of that, but unless you have some landmark precedent to cite that agrees with what you're arguing, I'd like to hear a court decide on that. Sony Betamax says what I'm arguing, and archival can be for fair use, too. There is 36 Cinema, which maintains copies of classic kung-fu movies that aren't available for purchase anymore, and invites Rza from Wu-Tang Clan on periodically for broadcast viewing with a value-add, Rza's commentary. Since the movies are no longer available for sale, there is no impact to marketability. Since commentary is added, transformative. That's all fair use, format-shifting. I say youtube-dl is a tool for format shifting, with substantial non-infringing uses that present a compelling value and don't impact marketability, exactly in line with the Betamax case. If format-shifting and copy for archival was strictly prohibited as you suggest, those movies could be lost forever whenever a format becomes obsolete. When was the last time you saw a VCR? (CD or DVD player?)

That's just one of the things that the fair-use rules and exemptions in copyright were written to help resolve positively.

You can record anything on TV with a VCR, even if it's available separately for purchase on video. There is no technical way I can see in which this scenario differs. You are not obligated to pay for content again and again in every medium, format-shifting is also an allowable kind of fair use. Everything you're saying makes sense, but I don't think it's as clearcut as you say, until it has been decided by a court (and appealed, and decided again by a higher court.)

The 36 Cinema stuff resulted in a new copyrighted derivative work: the commentary. And they can distribute that commentary all they want...but to distribute the underlying films as part of a commercial offering they need copyright licenses to those films. It's irrelevant that the underlying films are not for sale at retail, since they can still acquire a copyright from the copyright owner.

Format-shifting isn't fair use. It's literally an act of copying that is subject to copyright protections. Format-shifting might be fair use, but you have to do the full analysis, and format-shifting to avoid paying for a copy in the destination format is not fair use.

That's just one of the things that the fair-use rules and exemptions in copyright were written to help resolve positively.

Now you're just making stuff up. 17 USC 107 sets forth the basic rules for fair use, and they're quite limited.

When was the last time you saw a VCR?

Last week. Best Buy and Walmart still sell VCRs...Millions of people in this country still have old TVs with purely analog connections.

You are not obligated to pay for content again and again in every medium, format-shifting is also an allowable kind of fair use.

Actually, yes, you are, since each offering of the content in a different medium is a different copyrightable work subject to its own copyright. A VHS copy of a film is very different from the Bluray copy of the same film.

They sell tickets to these events. It's still fair use, (and it would not be possible to have these events without someone first acquiring a digital copy for archival.) You're arguing that they could broadcast the video with commentary but they can't make (or take) a copy? This is prerequisite to the activity! And many of these publishers may no longer exist, as not everyone agrees these movies are classics.

Also section 117 of Copyright Act explicitly calls out the making of a copy for archival as an allowable exception.

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... :)

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...

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.

If you have a court decision that shows a court interpreted Congress' actions as revoking fair use by the enactment of DMCA, then I'll concede the point, (but you won't have one as the DMCA does not explicitly revoke fair use.) DMCA laid out protections for copyright owners who sought to protect their copyright with eg. DRM schemes.

That doesn't revoke fair use. It just makes it practically difficult to utilize, since you might have to (illegally) circumvent a copyright protection device in order to access those fair use rights. They are still there, copyright owners just have a few more tools in their toolbox to prevent you from accessing them lawfully.

Is Youtube's "rolling cipher" such a mechanism? Debatable. Is the proper remedy a DMCA takedown of the entire youtube-dl source, or something else? That's all something for a court to decide. Only certain uses of youtube-dl are potentially foiling anti-circumvention devices like "rolling cipher", it's a utility that works on many video streaming sites, (and substantially many of the works on those sites are not protected by "rolling cipher" or similar, possibly any, DRM.)

> I don't know why you're hung up on Betamax.

Has there been a landmark ruling since, that reversed Betamax? It was decided by the Supreme Court, so unless you have one, I don't think I can agree that it is no longer relevant.

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.

Fair use is a balancing act based on analysis of various factors. In the case of ripping CDs for personal archival purposes, the courts treated that as fair use because at the time there was otherwise no way to make archival copies. It's very possible that today a court could rule that making archival copies of CDs for personal use is no longer fair use, because the digital version of the music now exists, as a separate article from the CD, and can be legally acquired. (Note that libraries and other archives still have a statutory archival use exception. Also note that because a CD is a physical good, there are certain rights associated with it that would not apply to content acquired digitally.)

For TV shows, it's not the same thing, since a DVD of an entire season is not the same thing as being able to view just a single episode. That being said, with the rise of digital, on demand availability of individual episodes, the original fair use justification for VCRs and DVRs has basically gone out the window.

The original Tivo could not exist today, and indeed...it does not: Tivo no longer offers standalone DVRs. Hulu, Youtube TV, your cable DVR, all of those services license time-shifted viewing rights from the copyright owners. (Yes, the studios created a new type of right just for this...)

Even from your own archive?

Originally many people started out with plain paper terminals rather than the spiffy video terminals that would later become common.

Well, sprocket-feed terminals more precisely, where you sit at a floor-standing wide-carriage _printer_ having a full QWERTY/ASCII keyboard, connected to the mainframe using a RS-232 serial COM port cable.

Or remotely dial-up over regular phone lines using external modems compatible with the kind first used for internet dial-up. Modems later found internally as standard equipment on PC's, made to accept a common RJ-11 telephone connector, eliminating the need for the RS-232 cable.

Not unlike a space-age teletype.

Either way, you type to the computer and it types back to you.

When available, as we all know it's been a while and computers still can never be expected to have 100 percent uptime, so time shifting has always been the norm in some way or another. At this point with a dumb terminal you just come back later when the mainframe is not too busy for input, or for output just wait for the printout until it's good and ready.

More effective session management would have to be accomodated by storage of some kind not unlike the punched paper tapes for sending and receciving on some teletypes.

Underneath the terminal you have a big box of the fan-feed computer paper so you fundamentally get an endless record of the communication in its entirety. Otherwise there is nothing. This is the default. Out-of-paper meant no communication and no data.

Pallets and pallets of boxes and boxes of printouts, excessive amounts of trees giving their lives and paper mill pollution up the wazoo (you ever smell that stuff?). But it's worth it, these are not copies, this is the original data, as you received it coming in live over the wire.

Depending on the institution or individual, and the risk of losing this unique output, archival handling procedures may apply.

Upgrading to a VT-102 type video terminal is actually analogous to a desktop PC when it comes to form factor, but the command line is still not from a local processor, and no local disk storage.

Naturally you still get your continuous printout as the screen display scrolls it on by, now possible from a plain serial printer (or from the same old paper terminal) connected to the second COM port on the VT-102 for pass-through printing.

You still use the terminal to operate the command line & display the output from a remote CPU, and with scrolling ability, can roll back to redisplay some recent earlier content. This was not a copy either, it was the same original live data as printed, just redisplayed. Not every terminal had that kind of memory though, and if present, not much.

Then you get _intelligent_ terminals with lots more memory plus local floppy storage, having more than two COM ports, and a simple local OS in ROM to handle these peripherals.

It finally became posible to judiciously save paper like never before, from that point on there has always been a local SAVE command of some kind. That's one of the only main purposes of any mainstream desktop workstation ever since.

You end up with a stack of floppies instead of paper containing the original data from that hardware session.

Interestingly, even today it is sometimes still faster to look something up in your paper records than find it on a disk though.

Anyway the disks simply have digital representation specifically crafted for the storage medium, often in appropriately treated text files.

From that point you could always play back data from a disk to your console screen, and/or one or more of the COM ports which may be connected to other terminals, computers, storage, or printing hardware. When the time is right.

The purpose of putting data into a computer file format to begin with is precisely so this type of communication can be achieved electronically.

And also, so the file or disk can be archived using one of the only non-communication commands in such a pre-DOS desktop environment, the ominous-sounding COPY command.

Well, it's electronic and you need to keep the original completely intact, so no telling how many times you need to run the COPY command to get a reliable archive.

But when one of the things that came across your wires is something like the text of The Godfather, that's an author's original work and it would be most questionable to manufacture copies for people as if it were your own creation, perhaps unfair even if proper attribution is given.

Each user has always been responsible for appropriately respecting the rights owners of any material in their archive, and questioning their own operation enough to avoid things like selling duplicates to just anyone. It's part of the responsibility of having such powerful equipment at their disposal.

Not just for those with dual floppy drives. Takes lots of floppy disks to boot sometimes too. Twenty years ago most PC's already came equipped with two CD drives in addition to a floppy drive, one CD drive was writable for archiving since floppies were not too popular any more.

MP3 sites earlier than Napster arose without question as experimenters compressed and shared their archives using the emerging codec. This was nothing like selling pirated copies of CD's, and was not made available to the general public by any means, just the few technology enthusiasts who had PC's with internet capability.

With progress in hardware and internet performance, there should be more advantage for archival use as time goes by.

Now exponentially more good material is at risk of being lost due to electronic or legislative failures, beyond the pre-existing threats from ordinary disasters like floods or acts of war. There's also the limitations of things like MP3 compression.

There should continuously be improving apps so users can work more effectively than ever with the desired portions out of their own complete digital history.

Meanwhile there is some consensus that operators without your permission are clandestinely eavesdropping to make truly illegal copies of your original complete digital history (along with many others') and extract portions that they my find desirable, sometimes against your own best interest.

You surely need to be entitled to better than this, and in favor of your own preferences instead.

In the USA according to copyright law archiving is not supposed to be impossible.

Nobody has a continuous paper record to fall back on any more.

Any threat to the usefulness of your digital equivalent would seem to be a form of cyberattack now that we have a better idea of how a cyberattack can do damage.

It's always been the same tool with possible uses for good or evil, the desktop workstation.

What you primarily do with it can only be determined by examination of its complete digital history.

From an entertainment law perspective it would seem like the only sensible violation could be if illegal entertainment had actually ocurred, not whether the file was being stored locally or remotely.

If most of the files just sit there almost all the time, with almost no dancing to the computer or anything like that, that's an archival device not an entertainment device.

Even more so when the primary user handling of the files is to maintain them intact against all odds, without ever intentionally using the file contents to achieve the files' own particular underlying purpose, whether entertainment files or not.

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.

You absolutely do not have to buy the MP3s rather than rip the CD that you own to MP3, just because they also sell MP3s and you want your archival copy to be in MP3 format. You can make them as a backup copy. (If there's no anti-circumvention device like the famous CSS encryption in your way, that is.) The publisher cannot pay once for CDs and also sell MP3s, they need a separate license for that (if that is how the author's licensing is written, granted, that's a fact.) The consumer is not bound in this way, they "paid" for their copy (presumably, if payment was needed to receive it) and they can format shift if their use passes the 4 factors balance test for fair use, (and if it is technically possible to do so, eg. without bypassing an anti-circumvention device, (thanks DMCA.))

Moreover, we are talking about youtube-dl, which is not owned by the RIAA and they have no right to take it down in this way. They can seek relief in the form of an injunction, the scope of the injunction to be determined by the courts, who would have to consider the substantial non-infringing uses of the tool; they would be unlikely to decide that vaporizing youtube-dl from orbit is the appropriate remedy.