Time shifting does not apply here. Netflix allows you to watch the movie whenever you want, not when they air it - therefore you do not need to "time shift" to watch the show within Netflix's parameters.
The argument here is that the end user does not wish to be connected to the internet when watching the show. THAT has not been determined to be a LEGAL use of downloading - therefore, it is still considered illegal.
Will the courts come back and say downloading to counter internet access issues is legit? Maybe. But they have not done so at this time.
