Re: Consideration in a Shrinkwrap Contract

From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
Date: Tue, 3 Oct 2000 10:23:41 -0700 (PDT)

• Tyler Ochoa <tochoa[_at_]LAW.WHITTIER.EDU> wrote:
  > > Even if 17 U.S.C. §117(a)(1) didn't explicitly grant it, it would
  be
  > > fair use to install it [a program] on one machine as a
  > > space-shifting operation by the reasoning of the Diamond
  > > Multimedia case.
  >
  > Although I strongly agree with Mr. Taylor's view and much of his
  > reasoning, I disagree with this statement. The Diamond case
  > (concerning the "Rio" MP3 player) did NOT hold that "space-shifting"
  > was a fair use. There are two sentences of dicta to that effect, but
  > the holding was based solely on the express language of the Audio
  > Home Recording Act, and the express Congressional purpose to allow
  > private noncommercial home recording. No extensive analysis of fair
  > use was made, and I would not rely on Diamond as a blanket
  > endorsement of space-shifting in all contexts. Indeed, the trial
  > judge in the UMG Records v. MP3.com case specifically rejected the
  > "space-shifting" argument.
  

I guess I have to retreat a bit, but I'm not yet willing to cede the point. I just read UMG v MP3.com, it's available here: http://www.law.uh.edu/faculty/CJoyce/release10/UGM.html

First, the Betamax case is also implicitly a space shifting case, since TV transmissions are space shifted to tape. This avoid the AHRA issues in Diamond. However, I think that saying UMG v MP3.com rejects fair use space-shifting is a bit too strong. If read this way, then all the cassette tapes consumers made from CD's and records before the AHRA are copyright infringement too. Libraries archiving newspapers on microfilm, and people scanning magazine/book photos for their desktop background are other examples of space shifting that I'd have trouble calling piracy.

Judge Rakoff in UMG v MP3.com rejects space-shifting in commercial settings when "this is simply another way of saying that the unauthorized copies are being retransmitted in another medium". I read this to say only that distributing space shifted copies isn't fair use, even when the recipients own originals.

His fair use analysis relied on the commercial aspects of MP3.com in both the first and fourth factors of the fair use calculus.

If, however, a consumer space shifted only to gain increased personal use of an already purchased product, the first factor would clearly flip. Also, Rakoff's reasoning on the fourth factor is that by retransmitting in a new media you unfairly compete with the author for commercial harvest of that media. I don't see how space shifting without distribution to others would threaten the exclusive distribution right of the copyright holder in the new medium.

I note that the cases cited by Rakoff are mostly commercial entities competing with copyright holders for control of new distribution channels (Radio over telephone, etc...).

> Nonetheless, I agree that the §117 privilege for making essential RAM
> copies could be covered by the fair-use doctrine, but only because it
> is an essential step in the utilization of the program in a computer,
> and not because it is "space-shifting."

Maybe, space shifting has become a buzzword, but isn't utilization of a copyrighted by a machine exactly what space shifting enables? Computers aren't really different than any other machine.

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