IP: Skipping Commercials is a Business Problem, Not Theft.

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Brad Templeton <brad () templetons com>


> decrypting the broadcast signal or tampering with the physical
> infrastructure, nothing the audience does or fails to do has any moral
> or legal significance.

While not for a moment defending the claim that it's theft to step out
of the room, the question does indeed have a lot of legal significance.

The supreme court debated it and wrote about it at length in their
famous 5-4 "Betamax" decision which (barely) made the VCR legal.


You can read the decision at this website:

    http://www.hrrc.org/html/inside_betamax.html

Among the issues discussed at length by the court was the question of
commercial skipping.  This was the famous case that ruled that making
a copy of a show to play it back later -- time-shifting -- was a
fair use and thus exempted from being copyright infringment.

The court ruled that since the time-shifting let more people watch a show,
it
was hardly hurting the market for the programs and their advertising.
In the lower court, a study revealed that, back in the late 70s, most
people did not FF over commercials.  That's because the late-70s Betamax
made it a royal pain to FF over commercials.  No remote control, not
on-screen-review to show you when the program started.   Since they aren't
skipping commercials, the court said, what is your problem with them
time-shifting?

Alas you see the rub.  Had there not been the finding of fact that people
weren't skipping commercials much on clunkly old VCRs, they might have ruled
differently.  Indeed 4 of them did, including Rehnquist and 3 who are now
retired.

This time-shifted copy is in a special undefined limbo of copyright law.
Even though it's in your house and on your tape, you don't really own it
in the true sense of copyright law.  For example, you can't sell it or
rent it.  You were allowed to make it only because your purpose in making
it was in the court's view, a fair use.   If your purpose in making it is
not a fair use, you can't make it.

Remember that the default under coypright law was that you can't legally
record a show at all.  That's the exclusive right of the copyright holder.
The court opened up our ability to do that for a specific purpose.

So, alas, the legal question of "Can you record a show if your purpose is
to watch a modified version, minus the ads" is, unfortunately, not settled.
In the court's decision, they indicated they would (as fair use law
requires)
consider if there was harm done to the market for the work due to the
copying.  

It may be settled by the Replay case.  In this case we add the question of
automatic commercial elimination.   The other wonderful doctrine the Betamax
case introduced was the idea that a technology should not be liable if it
has substantial non-infringing uses, like time-shifting.

So even if the court finds that I personally am violating copyright when
I record shows on my Tivo to watch them later commercial free, the Tivo
itself should be immune because it's "FF" and even "30 second skip" buttons
have other uses besides skipping commercials.  (I find the 30 second skip
to be great during the Oscars, it moves you from the announcement of the
winner right to the speech.)

What they'll consider with the Replay is whether the automatic eliminator
has any non-infringing use, and that's an unsettled question.

----

As I wrote earlier, regardless of the legal issues, a solution will be
found to this problem, for if TV networks can no longer sell to advertisers
because everybody has a Tivo, they will find some other way to make money
for their product -- the public wants it too much.

The real issue to me is just what answer they will find, and how it will
affect the future of technology.  Some want Alactraz level DRM, where you
can't push "FF" during the ads, just as some DVDs prevent you from doing
it during the copyright notice.  The public wants other solutions.


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