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TOS can't restrict things that are expressly legal under fair use.

There's no such thing as "expressly legal under fair use." The Betamax case is the law of the land, and the court certainly held that recording television programs for later personal viewing is legal, but fair use remains one of the least defined concepts in IP law. And yes, a contract absolutely CAN restrict a person from doing something totally legal. I think you may be conflating "violation of law" with "contract rights."

Example: It is 100% legal for me to walk down the street outside my house. I sign an agreement with you, whereby you will give me $5 if I don't walk down the street outside my house for 24 hours. This is an enforceable contract, and if I breach by walking down the street, I don't get the $5 at issue.

They can certainly write it into the document, but it won't hold up under scrutiny, especially in court. It's been tried many times, and always fails. That's why recording TV shows on your VCR, DVD-R, or DVR are legal despite the cries of impending doom from content providers. They tried to write it into the Digital Millennium Copyright Act, and every attempt to make ripping DVDs and Blue Rays illegal has failed in court. The same law applies to live streams.

Well, there's a bit of a distinction in that TV providers aren't operating expressly under the same parameters that DCI is. Namely, TV providers in most cases don't need to secure sync rights for music they use in their programs. Also, TV providers are now ALL TOO HAPPY for you to record their commercials, even if you don't watch them.

The issue as I see it is not that the individual user is illegally downloading, so much as DCI is arguably violating its licenses by allowing such downloads to occur without disclaiming its liability.

DCI doesn't have the rights to distribute recorded videos of corps' performances. If I were DCI's lawyer, I would advise them to tread lightly and amend the TOS to disallow stream grabbing. I don't think it will stop people from downloading, but it would certainly help DCI avoid some potential liability.

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In other words, we need far fewer lawyers. No surprise there.

Recording for one's own private use is a problem? Hm, why does almost every satellite/cable box come with a DVR function?

Because content that you DVR is licensed for such a use. The TV rights holders are thrilled when you record their commercials!

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I found this...thought it was a bit interesting...

Source: Public Domain Information Project

Fair use is very interesting. You have to remember though that we here aren't dealing with fair use of music, we are dealing with off-license use of sync'd and arranged music. It's a bit of a different breed. :)

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Because content that you DVR is licensed for such a use. The TV rights holders are thrilled when you record their commercials!

That certainly explains making a DVR recording from a pay cable source that doesn't have commercials.

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Fair use is very interesting. You have to remember though that we here aren't dealing with fair use of music, we are dealing with off-license use of sync'd and arranged music. It's a bit of a different breed. :)

Thank you for the clarification...and in a nice way :)

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That certainly explains making a DVR recording from a pay cable source that doesn't have commercials.

Well, yeah. HBO and company operate on a different model. They don't care about ratings or ads -- they only care about number of paying subscribers. As far as HBO is concerned, the more people that are watching, the better, regardless of how they are watching. Game of Thrones is the world's most illegally-shared television show, and HBO puts up a cursory (at best) effort to dissuade people from downloading it.

You get hooked on HBO and then you either subscribe or buy Blu-Rays and they are happy campers.

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I do wonder exactly when DCI was planning to explicitly inform the fans of this.

And as a side note, with all of the copyright issues this improves the position of groups choosing to use public domain works.

You make 2 good points -

As to the first, I had a colleague once that had a sign on her desk that said "Bad News Never Gets Better With Age", and we see that happening here

and,

As for the second, maybe 2016 should be 'The Year of Public Domain' - set a requirement that all corps can only use public domain source material (or original material that the corps staff authors themselves). It would level the playing field, I don't think too many groups have firmed up their 2016 show plans, and we could see new creativity (Sousa w/ electronics, anyone?).

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You make 2 good points -

As to the first, I had a colleague once that had a sign on her desk that said "Bad News Never Gets Better With Age", and we see that happening here

and,

As for the second, maybe 2016 should be 'The Year of Public Domain' - set a requirement that all corps can only use public domain source material (or original material that the corps staff authors themselves). It would level the playing field, I don't think too many groups have firmed up their 2016 show plans, and we could see new creativity (Sousa w/ electronics, anyone?).

Yeah... I'm not a DCI expert, but that doesn't seem like a very solid plan... :/

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Update:

DCI is not selling DVDs at the moment, but they are working on it. They ARE making a 2015 DVD as of today, but it may come out late? Sounds like they are waiting for legal approval on both the 2015 DVDs and previous years. They are working on them and anticipate that they will be available again.

I will update on anything more I hear from DCI. They apparently are getting overwhelmed from phone calls about DVDs :sigh:

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I will update on anything more I hear from DCI. They apparently are getting overwhelmed from phone calls about DVDs :sigh:

They definitely need a good communication director!

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