IP: more on It's OK to record by time of day, but a copyright violation to use a program guide to record the same program... -- these guys have gone bongo djf

[David Farber <dave () farber net>]

> Date: Tue, 12 Feb 2002 00:20:19 -0800 (PST)
> From:
> For IP if you want, but anonymously ...
>
> I've not reviewed the actual filings.  I did read The LA Times article citeds:
> http://www.latimes.com/business/la-000010608feb11.story?coll=la-headlines-business
> which suggests three causes of action against folks like ReplayTVs.
>
> 1.  ReplayTV recorders violate copyrights by enabling users to send
> videos to other ReplayTV boxes over the Internet.
>
> Recorders themselves cannot violate copyright.  The legal theory here has 
> to be
> that there is some contributory infringement doctrine in copyright 
> law.  This is
> a new concept for copyright law and supported only by case law.  (I think the
> Napster ruling by Judge Patel is one of the few that find is applicable in 
> the
> context of copyrights.)
>
> Secondly, it argues that redistribution of material publically available to
> another individual at a more convenient time and place is somehow a copyright
> violation.  It seems, to me, a bit far fetched.[B
>
>
> 2. ReplayTV recorders violate copyrights becasue they skip commercials 
> automatically.
>
> Again the cause of action depends upon a theory of contributory infringement.
>
> Moreover, whose copyright are they trying to protect?  The copyright of the
> original show remains intact.  The copyright of the elided commercials remains
> intact--they are gone.  There is a weak copyright argument to protect the
> compendium of commercials and program, but that protection is generally
> considered to be thin.  A compilation is a work formed by the "collection and
> assembling of preexisting materials or of data that are selected in such a way
> that the resulting work as a whole constitutes an original work of 
> authorship".
> Since the program sans commercials is a complete standalone work with it's own
> protection, and since the supposedly derivative work consists of a compilation
> of program segments and commercials, it's hard to see significant protectable
> expression in the mixture.  (Is there some art in selecting commercials for a
> particular show, say, "Friends", or is the space sold to the highest 
> bidder?  If
> the latter, where is the protectable expression?  If the former, what is the
> protectable expression and how does it not being present have anything to do
> with copyright violation.)
>
> 3.  ReplayTV recorder violates some right because they allow customers record
> and store shows based on genre, actors, titles, or other invormation.
>
> As you noted, this is truly off the wall.  The information used to select 
> shows
> is drawn from a compendium of information, aka a database, possibly 
> copyrighted
> but the copyright is likely not to be owned by the plaintiffs.  Using such a
> database to discover when shows are scheduled certainly qualifies as fair 
> use.
> (Why have a program listing if one cannot use it?) Moreover, words and short
> phrases and facts are amongst those things specifically excluded from 
> copyright.
>
>         * * *
>
> Were it not for the enormous money, time, and effort being expended on these
> sorts of issues, these claims would seem laughable and unlikely to previal.
> But, I worry that there is a chance that some court may find the arguments
> credible.  And if they do, we'll have to live with a myrid of unintended
> consequences.

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