Re: IP: more on Sonic Blue etc

[David Farber <dfarber () earthlink net>]

-----Original Message-----
From: Brad Templeton <brad () templetons com>
Date: Wed, 13 Feb 2002 02:02:46 
To: farber () cis upenn edu
Subject: Re: IP: more on Sonic Blue etc


Dave, I recommend that readers interested in this case take the time
to read the actual "Betamax" decision, which is up on the web here:

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

What I learned in reading it was that it's pretty narrow to be viewed
as technologies Roe vs. Wade.  We can't predict a lot from it, even
aside from the fact that it was a narrow ruling, with Rehnquist as one
of the dissenters.

Here are some interesting notes...

The rule that a technology is legal because it has substantial non-infringing
uses should hopefully stand, though it is being strained today.

They ruled that the Betamax had a few non-infringing uses.   Of most
interest was the ruling that "time-shifting,"  while it began with
making a copy, was a fair use.

Secondarily they noted that there were "free" programs on TV (notably PBS
shows like Mr. Rogers) which openly gave permission to their viewers to
tape and collect the show.  Today they would point to C-SPAN.  The existence
of such shows was probably enough to make the VCR legal, even without the
time-shifting.

However, when it comes to the time-shifting, the court paid a lot of
attention to the "damage to the commercial value of the work" clause that
is one of the standards for examining a fair use.

In particular, and this will scare folks, there was a finding of fact that
at the time _most people did not fast forward over commercials_.  The
original case was from the 70s, and the betamax of the day could not do any
sort of on-screen scan.  You had to hit FF and play and time it just right.
There were also no remote controls, you had to go up to the TV to do it.
We wired the VCR so it was next to the chair with a long cable to and from
the TV so we could skip commercials by watching the tape counter (a
manual one) on our first VCR.

They thus ruled that since most people weren't skipping commercials, the
VCR was not hurting the studios, in fact it was giving a chance for _more_
people to see the ads.  This would clearly not be the way they would see
it today, and definitely not about a fully automatic commercial skip.

The majority doesn't say it explicitly, but there's a sense in there that
if they had decided that commercial skip would hurt ad revenue, they would
not have declared it to be a fair use.

How can that be?  Well, it's importat to remember that it is not the
skipping over the commercials that would be the infringment.   It's the
recording of the show in the first place with the goal of watching it
without commercials.    That's how fair use works.

As you might guess, you can't tape shows off the air in order to sell the
tapes.  What matters in whether you can record a show off the air is
what you intended to do with it.

The court ruled that if people taped shows off the air to watch them
later -- including the commercials -- that was a fair use.   It's not
clear they would say that about taping them for the purpose of watching
with no commercials, which is what we all do today, especially those of
us with Tivos and Replays.

However, in this event, it would be the ordinary person who was violating
the copyright, not the recording device or its maker.  However, if the
recording device has a deliberate "commercial skip" with no other purpose
than to have users engage in the possibly infringing act of recording to
watch commercial-free, the box maker could have contributory liability.

Things like the 30 second skip button on the Tivo, while very handy for
commercial skip, should by this theory still be OK, because they have
other purposes.  In fact, I love the 30 second skip during the Olympics,
as I find it takes me quickly from event to judging.  Or skips a lot of
Bob Costas' inane remarks.   It has many other uses, though of course
commercial skip is the most popular one.  Even so, those entirely valid
uses should be enough to keep it legal.

And on another positive note, the existence of things like C-SPAN and PBS
should be enough to keep file sharing on the Replay legal.

While like most, I love commercial free watching, I do think it's a free
lunch that can't last forever.  I predict that in the future, we'll either
pay for our TV (fine by me) or watch the commercials and answer quick
multiple choice questions on the remote about the commercials to show we
watched them -- answer enough right and get your TV for free.  Done
right, they should be able to support the free TV with fewer ads, because
consumers retain much more memory of an ad if they answer a question about
it.

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