Re: Technology prohibiting copying by VCRs, etc.

On Wed, 28 Oct 1998, Bruce E. Hayden <bhayden[_at_]ieee.org> wrote:
>
> Sheldon W. Halpern <shalpern[_at_]pop.service.ohio-state.edu> wrote:
> >
> > We need to remember that Sony very specifically focused on copying
> > for time shifting purposes of "free" over the air broadcast of
> > copyrighted works; it is not at all clear that Sony fair use
> > (particularly given the way the Court so drastically limited Sony
> > in Campbell) would eapply to copying pay per view or similar works.
>
> Personally, I see little if any difference between time shifting
> pay-per-view and free over-the-air broadcasting. The justification
> in both cases would be that the transmitter has been already been
> paid.
>
> The reality of course is that many who record over-the-air broadcasting
> are not really time shifting at all, but rather building a library.
> And from this point of view, maybe a distinction can be drawn with
> pay-per-view.

In the views of most movie studios, the question is where the material fits in their distrubtion "windows," rather than the nature of the personal use by the consumer. The order of the windows is generally: theater; home video rental and sales; video-on-demand/pay-per view; subscription channels; and finally basic or enhanced cable/satellite and broadcast. Near the top of the chain they don't want people recording it for any reason, as they are still hoping to sell a la carte. Near the bottom they may not care, as they have already wrung most of the distribution bucks out of the product in the 18 months it took to get from the top to the bottom of the chain. Of course, not every studio takes an identical view.

Many on the movie side would like to roughly equate their interests, as described above, with a "time shift only" interpretation of the Betamax case, so they could limit its application to the broadcast medium and evidence of use available to the courts when the case was tried. There is no reason to fall into this snare: (1) the main issue in Betamax was contributory copyright infringement, as to which the Supreme Court ruled that a product with infringing uses may nevertheless be lawfully sold if it has any commercially significant non-infringing uses (including fair use, but also including authorized use), and (2) ONE sufficient example of a fair use that the Court found in the record was time-shifting of TV broadcasts. This determination neither excluded nor compelled other combinations ofuses and media being found to result in fair use, nor did it condition the legality of recorders, for contributory infringement purposes, on other such uses being found.

Bob Schwartz
<shebam[_at_]access.digex.net> Received on Thu Oct 29 1998 - 16:26:21 GMT