By Richard Menta 8/10/05
It looks like enough people have discovered CraftyTV that any show I choose to watch never goes more than several seconds before it pauses to buffer.
Nonetheless, the site's existance is very interesting as it claims to ride on a vague loophole in US law that allows retransmission of free broadcast programming without additional license if the rebroadcast is conducted by a government entity or a private group for non-profit.
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Of course a court, or more likely several courts, would need to decide if this is an accurate reading. Quite interesting if it turns out to be legal, though I am sure the exclusion was crafted with a different purpose in mind. A passage written before the distibution powers of the Internet were even a concept. A passage written before a billion dollar video tape and DVD market existed.
The copyright law Title 17, Chapter 1, Section 111(a)(5) reads as posted on the CraftyTV website:
"The secondary transmission of a
performance or display of a work
embodied in a primary transmission is not an infringement of copyright
if the secondary transmission is not made by a cable system but is
made by a governmental body, or other non-profit organisation, without
any purpose of direct or indirect commercial advantage, and without
charge to the recipients of the secondary transmission other than
assessments necessary to defray the actual and reasonable costs of
maintaining and operating the secondary transmission service.".
Does that means that any non-profit organization can re-broadcast any TV show (without additional permission) and charge a fee as long as the fees are only enough to cover the costs of transmission?
The owners of the apt named CraftyTV feels it does.
And so the site is filled with what looks like every episode of 41 popular shows including Desperate Housewives, Friends, Chappelle Show, the Simpsons, Mash, Black Adder and Fawlty Towers.
These programs are not for download, it is a strictly streaming affair to, I guess, qualify as a form of re-broadcast. I'm sure that the TV industry will differ, an industry that has resisted the posting of its content on the Web in any form of commercial enterprise.
We have said for years that TV episodes offer ideal content for Net distribution, but the industry has shown little interest in actively pursuing this as a new endeavor. Just like with the movie and record industry, few are choosing to wait for solutions beyond downloading episodes from P2P sites and are attempting to try to do this for them.
A few years back a company called ICraveTV out of Canada built such a site, streaming live broadcasts on the Web. Though re-broadcasting was not legal in the US it was legal in Canada and ICraveTV thought it was protected. It wasn't enough as the US television industry sued ICraveTV in American court, got an American injunction and managed to shut the site down. Without the finances or political clout to continue the fight, ICraveTV faded.
CraftyTV survives on advertising and a version of the service where users can purchase extra bandwidth (and get skipless streams), supposedly legal according to the defray the actual and reasonable costs section of the above law. It is doubtful they have enough money to protect themselves in event broadcasters take them to court.
The lawyers will come out soon as the TV industry calls CraftyTV criminals. Former MPAA head Jack Valenti called the ICreaveTV service "one of the largest and most brazen thefts of intellectual property ever committed in the United States" (it was committed in Canada, not the US). Present MPAA chief Dan Glickman will no doubt make the same claims against CraftyTV and try to use the ICraveTV decision as a precedent.
It will be interesting to see if there is validity to CraftyTV's claims. If there is, no doubt Congress will be called upon by the various media lobbies to change the law and close the loophole.
If you go back a few decades, before cable TV, many areas in mountainous regions were unable to receive television broadcasts because the mountains blocked the transmissions. My guess is that this law was created to allow towns and the private sector to build solutions to this problem without fear of violating copyright law. This is how the cable TV industry began, by serving large but remote communities in the Rockies.
The law as written above does not specify why such an exclusion is given, it just states non-profit implying that anything not-for-profit must be in the public good. CraftyTV might just have it right, though not for the originally intended reasons. It might be pointed out that one of the episodes offered is the Sopranos, a show not on free broadcast television, but on a pay extra cable network (HBO). Will this make a difference? Ask a Judge.
They just better have millions in the bank to pay for legal fees, because nothing is a better barrier to entry than expensive court costs.
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