IP: more on Sonic Blue etc

[David Farber <dave () farber net>]

> From: "Dana Blankenhorn" <danablankenhorn () mindspring com>
> To: <farber () cis upenn edu>
>
> The following was written last year
> (http://www.a-clue.com/archive/01/cl011203.htm#story4) but it applies now.
>
> The suits against ReplayTV and TiVo are an attempt to use the Digital
> Millenium Copyright Act to overturn the Betamax case.
>
> ----
>
> Retrial of the Betamax Case
>
> Your VCR exists only because of the "Betamax case,"
> (http://www.virtualrecordings.com/betamax.htm) a 5-4 Supreme Court decision
> holding that copying over-the-air TV shows represents "fair use," and not a
> copyright violation.
>
> I have said before that the 1998 DMCA
> (http://www.educause.edu/issues/dmca.html) will overturn this decision,
> which might be considered technology's Roe vs. Wade in that it's commonly
> accepted as fact by most Americans. Now my theory is about to be tested in
> the form of a lawsuit against SONICblue, a digital video technology company
> responsible for ReplayTV
> (http://dailynews.yahoo.com/h/nm/20011031/tc/media_sonicblue_dc_1.html).
>
> The only real difference between the ReplayTV 4000 (or its cousin the TiVo)
> and a Betamax is that it's digital. This means the copies it makes are
> exact. They don't degrade the way videotapes do. The device won an Emmy
> Award just a few weeks ago.
> (http://news.cnet.com/investor/news/newsitem/0-9900-1028-7554187-0.html)
>
> Neither Replay nor TiVo has yet made a lot of money. People buy the sets but
> forego the accompanying monthly service fees. As a result there's no pile of
> cash to make up for the revenue lost when people flip through commercials or
> pass around digital copies of their favorite shows (which are also
> flipped-through sans ads).
>
> The SONICblue case is a direct attack against the Betamax ruling, but as I
> said that was a 5-4 decision and new laws have been written since. If the
> Betamax decision is overturned, however, I predict people will demand
> Congress do something to restore the status quo. I further predict Congress
> will, or we'll get a new Congress. People may ignore attacks on "those
> computer people," but you start messing with their VCRs and they'll start
> messing with you.
>
> Content producers need to create new business models people will accept,
> now, because their reign over our laws could be short-lived.
>
>
>
>
> -----Original Message-----
> From: David Farber <dave () farber net>
> To: ip-sub-1 () majordomo pobox com <ip-sub-1 () majordomo pobox com>
> Date: Tuesday, February 12, 2002 6:34 AM
> Subject: 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
>
>
> >
> >>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.
> >
> >For archives see:
> >http://www.interesting-people.org/archives/interesting-people/
> >

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